U.S. v. Gagnon
| Decision Date | 21 January 1981 |
| Docket Number | No. 79-1277,79-1277 |
| Citation | 635 F.2d 766 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Charles Francis GAGNON, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Dennis L. Blewitt of Barnard & Ferguson, Boulder, Colorado (Albert R. Matthews, Muskogee, Okl., with him on brief), for defendant-appellant.
James E. Edmondson, Asst. U. S. Atty., Muskogee, Okl. (Julian K. Fite, U. S. Atty., Muskogee, Okl., with him on brief), for plaintiff-appellee.
Before HOLLOWAY, DOYLE and LOGAN, Circuit Judges.
Charles Francis Gagnon appeals from a judgment of conviction after a jury trial for possessing with intent to distribute marijuana, a controlled substance, in violation of 21 U.S.C. § 841. Gagnon raises nine claims on appeal, each of which is separately discussed hereafter. We conclude each of the arguments is without merit and affirm.
In reviewing findings of fact we must examine the evidence in the light most favorable to the appellee. The record showed the following. On November 19, 1978, two members of a deer hunting party set out to retrieve a deer stand they had previously left on an 1,800-acre ranch known as Old Brooks Bottom located near Calvin, Oklahoma. While there, they accidentally discovered a large newly constructed metal barn. Peering through a small crack above a locked door, the two curious hunters saw in the barn a large quantity of a green leafy substance which they suspected was marijuana. They summoned J. R. Parks, a member of the hunting party and a former volunteer special deputy for Hughes County, to view the contents of the barn. Parks looked inside and concluded that it was full of marijuana. He was able to locate a three-inch gap between the ground and the metal siding through which he secured a handful of the substance he intended to present to proper authorities. Parks telephoned Agent Means of the Oklahoma State Bureau of Narcotics and Dangerous Drugs. Means and three other agents drove immediately to Calvin to meet with Parks and to perform a field test on the sample Parks had retrieved from the barn. The field test indicated marijuana. After receiving precise directions to the ranch, the agents obtained a search warrant authorizing them to enter the property and search the barn for marijuana.
On November 20 the agents entered the barn and discovered, among other things, seven large tarpaulins covered with drying marijuana leaves. The agents were unable to transport the large volume of marijuana in their automobiles and felt compelled to remain on the premises until a four-wheel drive pickup truck arrived from Oklahoma City the following day. On November 21, before the transport vehicle had arrived, defendant Gagnon encountered the agents when he approached the barn in a pickup truck loaded with a camper. Following a brief conversation during which one of the agents observed marijuana lying on the floor of the camper, Gagnon was arrested for possession of marijuana and his vehicle was searched.
The search revealed a cardboard carton identical to cartons found in the barn, keys fitting the lock on the gate to the property and the lock on the barn, and other items similar or identical to items found in the barn. Gagnon was then placed under arrest for possession of marijuana with intent to distribute. He was subsequently indicted and convicted by the jury of violating 21 U.S.C. § 841.
We consider first Gagnon's claim that the district court erred in admitting into evidence marijuana and other items obtained pursuant to the search warrants. Gagnon argues the affidavits supporting the search warrants did not establish probable cause under Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), which requires that affidavits based on information provided by an informant contain sufficient detail to satisfy the magistrate that (1) the informant has in fact observed the facts recited in the affidavit and (2) the informant is reliable. See Franks v. Delaware, 438 U.S. 154, 165, 98 S.Ct. 2674, 2681, 57 L.Ed.2d 667 (1978). Gagnon argues Agent Means' affidavits failed to meet the second requirement of Aguilar that there be some showing of the informant's reliability since they did not recite that Parks was known historically to be a reliable informant.
We have long subscribed to the rule that an affidavit need not set forth facts of a named person's prior history as a reliable informant when the informant is a citizen/neighbor eyewitness with no apparent ulterior motive for providing false information. United States v. McCoy, 478 F.2d 176, 179 (10th Cir. 1973); see also Rutherford v. Cupp, 508 F.2d 122, 123 (9th Cir. 1974), cert. denied, 421 U.S. 933, 95 S.Ct. 1663, 44 L.Ed.2d 92 (1975). We will not disturb the district court's factual determination that Parks was an unpaid nonprofessional informant with no apparent motive to fabricate.
Gagnon also contends the affidavits lacked sufficient facts upon which the magistrate could reasonably conclude the information provided by Parks was reliable. We disagree. The magistrate was informed that Parks, a casual hunter on Old Brooks Bottom, had personally viewed the suspicious contents of a newly constructed barn, had provided a sample of the contents to the proper state authorities, and that the sample had proved to be marijuana. We conclude the magistrate was sufficiently informed of the underlying circumstances from which the affiant concluded the informant's tip was reliable. See United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 745, 13 L.Ed.2d 684 (1965); Edmondson v. United States, 402 F.2d 809, 812 (10th Cir. 1968); Schutz v. United States, 395 F.2d 225, 229 (10th Cir. 1968).
We turn next to Gagnon's claim that the agents, having conducted their search on November 20 and discovered the contraband specified in the warrant, had no authority to remain on the premises until November 21 when Gagnon was arrested. We agree that once a search warrant has been fully executed and the fruits of the search secured, the authority under the warrant expires and further governmental intrusion must cease. See Levin v. Blair, 17 F.2d 151 (E.D.Pa.1927); Mellet & Nichter Brewing Co. v. United States, 296 F. 765, (E.D.Pa.1923).
Nevertheless, we conclude that exigent circumstances in this case prevented full execution of the warrant on November 20, and justified the prolonged governmental intrusion. The agents were responsible for securing the marijuana until it could be disposed of and were justified in staying on the premises until it could be removed from the property. The government's intrusion under the circumstances was minimal. The barn was located on uninhabited land; the agents slept in their vehicles and avoided any unreasonable interference with the property. The agents' continued presence on the property was justified "under a system of justice responsive both to the needs of individual liberty and to the rights of the community." United States v. Ventresca, 380 U.S. at 112, 85 S.Ct. at 747.
We also find no merit in Gagnon's claim that the evidence seized from his pickup truck was the fruit of an illegal search and therefore improperly admitted by the district court. The validity of the search in this case depends on the validity of Gagnon's arrest. Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964). Beck instructs that the validity of an arrest depends "upon whether, at the moment the arrest was made ... the facts and circumstances within (the arresting officer's) knowledge ... were sufficient to warrant a prudent man in believing that the (suspect) had committed or was committing an offense." Id.
Based on testimony at the suppression hearing that Agent Dempewolf arrested Gagnon after personally viewing marijuana in Gagnon's pickup truck, the district court concluded the arrest was valid. It is well established that at a hearing "on a motion to suppress the credibility of the witnesses and the weight to be given the evidence, together with the inferences, deductions, and conclusions fairly and reasonably to be drawn from the evidence, are to be determined by the trial judge," whose determinations we must accept unless clearly erroneous. United States v. Donahue, 442 F.2d 1315, 1316 (10th Cir. 1971). We find no error in the district court's determination that Gagnon's arrest was supported by probable cause, or in its conclusion that the search of Gagnon's pickup truck incident to the arrest was lawful. See Adams v. Williams, 407 U.S. 143, 149, 92 S.Ct. 1921, 1924, 32 L.Ed.2d 612 (1971); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). The fruits of the search were properly admitted.
Gagnon contends that the informant Parks was "a de facto police agent" cloaked with state authority and, therefore, subject to the Fourth Amendment restraints on warrantless searches and seizures. That is a question of fact, our examination of which is restricted by the traditional limitations on appellate review. See Villano v. United States, 310 F.2d 680, 684 (10th Cir. 1962). The district court's conclusion, based on extensive testimony at the suppression hearing, that the evidence was "clear and convincing that this was a private action on behalf of Mr....
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