U.S. v. Hare

• Decision Date: 18 September 1985
• Docket Number: No. 84-3819,84-3819
• Citation: 772 F.2d 139
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Genell HARE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 139

772 F.2d 139

UNITED STATES of America, Plaintiff-Appellee, v. Genell HARE, Defendant-Appellant.

No. 84-3819.

United States Court of Appeals, Fifth Circuit.

Sept. 18, 1985.

Anthony Bertucci, (Court-appointed), Baton Rouge, La., for defendant-appellant.

Randall B. Miller, Bradley C. Myers, Asst. U.S. Attys., Baton Rouge, La., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Louisiana.

Before CLARK, Chief Judge, THORNBERRY and JONES, Circuit Judges.

CLARK, Chief Judge:

Genell Hare was convicted of conspiracy to manufacture and possess with intent to distribute both phenylacetone (P2 P) and methamphetamine and possession of P 2 P with intent to manufacture methamphetamine. The government obtained certain evidence used at Hare's trial through the search of a building conducted by Drug Enforcement Administration (DEA) agents pursuant to a search warrant issued by a United States Magistrate. The district court denied Hare's motion to suppress this evidence. On appeal, Hare argues that two statements contained in the affidavit submitted to obtain the search warrant should be excised and that, with or without those statements, the warrant was invalid because it lacked probable cause under the Fourth Amendment. We affirm.

I

On May 4, 1984, a United States Magistrate in Houston, Texas issued a warrant, on the application of DEA agents, for the attachment of an electronic transmitter (beeper) device to a can of ether purchased by David Lnu based on information received by DEA that Lnu had placed an order for a number of chemicals used in the manufacture of P2 P and methamphetamine. A Houston chemical company informed DEA that Lnu had ordered, among other things, ten pounds of phenylacetic acid, ten pounds of sodium acetate, five gallons of ether, one gallon of acetic anhydride and one reflux condensor, all of which are used in the manufacture of P2 P and methamphetamine. The warrant authorized the DEA agents to monitor the beeper "until the electronic device leads to the ultimate destination and location where the manufacture of the controlled substance occurs." The agents observed Lnu pick up the chemicals and followed him from Houston to Rougon, Louisiana, where an unidentified male and female joined him in unloading the chemicals and placing them in a cinder block building adjacent to a residence.

On May 8 the DEA agents obtained a search warrant for the cinder block building based on an affidavit submitted by Dick Gustafson, a DEA agent. The affidavit recited the information above and also recited the following results of the DEA's two day surveillance of the building. At 4:00 a.m. on May 8 the female was observed going back and forth between the building and an adjacent residence and at 9:30 a.m. on May 8 the male and female bought large quantities of ice at a nearby store and subsequently took the ice to the building. After stating that large quantities of ice are used in the manufacture of P2 P and methamphetamine, the affidavit stated that immediately after the ice was taken into the building, the beeper from the can of ether began emitting signals of a different frequency, indicating that the ether was then being used. The affidavit further explained that due to the possibility that contraband could be destroyed it might become necessary to execute the search warrant during the nighttime hours. The final paragraph of the affidavit stated that "[o]n May 8, 1984, at approximately 5:00 p.m., a Louisiana State Police chemist, conducting surveillance on the above described building, detected odors coming from said building which indicates that P2 P is being manufactured." The affidavit was sworn and subscribed before the United States Magistrate at 6:10 p.m. on May 8.

On May 9 DEA agents searched the cinder block building and discovered evidence of a P2 P/methamphetamine lab in operation; this evidence led to Hare's indictment and conviction.

II

Hare contends that the final sentence of the affidavit relating to the odors detected by the Louisiana State Police chemist constitutes a misrepresentation, made intentionally or with reckless disregard for the truth. Hare's contention revolves around the statement that the chemist "detected odors ... which indicates that P2 P is being manufactured." According to Hare, the statement implies that the chemist smelled P2 P itself or at least smelled odors which led the chemist to believe that P2 P was being manufactured. In fact, however, the chemist smelled only ether and the agents concluded from this that P2 P was probably being produced.

A

In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the Supreme Court held that if an affiant makes an intentional or reckless misrepresentation in a warrant affidavit then such misrepresentation may not be considered in determining whether the affidavit establishes probable cause. Id. at 155-56, 98 S.Ct. at 2676, 57 L.Ed.2d at 672. As this court stated in United States v. Namer, 680 F.2d 1088, 1093 (5th Cir.1982), "if a search warrant affidavit contains a material misstatement made intentionally or with reckless disregard for the truth, the court should excise the offensive language from the affidavit and determine whether the remaining portion establishes probable cause."

The first question is whether the challenged statement was in fact false. That depends on how the statement is perceived. It reasonably can be read as saying that the chemist detected certain odors and, in the opinion of the affiant, such odors indicate that manufacture of P2 P is presently occurring. Such a statement would not be false. On the other hand, it could be read as averring that the chemist detected odors which the chemist believed indicated the manufacture of P2 P was taking place. Such a statement would be false.

Hare's challenge relies on United States v. Namer, supra. This reliance is misplaced. In Namer the challenged statement could not reasonably have been read in a truthful way. In that case the Deputy Commissioner of Securities for the State of Louisiana told an investigation team that certain loan instruments in which Namer was dealing "probably were securities within the meaning of the law." The members of the investigation team then drafted a warrant application stating that the Deputy Commissioner had told them that the offerings "are classified as securities." This court held that the statement in the application was false. Id. at 1093. It noted that the affidavit was drafted by two attorneys during a lengthy investigation; furthermore, "[t]he word 'classified' connotes the authoritative result of ordered procedures and methodologies, not an ad hoc and qualified oral opinion of a single agency employee." Id. at 1094. We held that the magistrate could only reasonably conclude that the loan instruments had been classified as securities under a formal classification procedure.

While in Namer "the affiant inaccurately described what had transpired," id. at 1094, in today's case the challenged statement, though ambiguous, reasonably could and should be read...