U.S. v. Hendricks, No. 83-1308

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore FLETCHER, REINHARDT and BEEZER; FLETCHER
Citation743 F.2d 653
PartiesUNITED STATES of America, Plaintiff/Appellee, v. Dennis Allen HENDRICKS, Defendant/Appellant.
Docket NumberNo. 83-1308
Decision Date21 September 1984

Page 653

743 F.2d 653
53 USLW 2182
UNITED STATES of America, Plaintiff/Appellee,
v.
Dennis Allen HENDRICKS, Defendant/Appellant.
No. 83-1308.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted July 10, 1984.
Decided Sept. 21, 1984.

Nancy Fiora, Asst. U.S. Atty., Tucson, Ariz., for plaintiff/appellee.

Robert J. Hirsh, Hirsh & Fines, Tucson, Ariz., for defendant-appellant.

Appeal from the United States District Court for the District of Arizona.

Before FLETCHER, REINHARDT and BEEZER, Circuit Judges.

FLETCHER, Circuit Judge:

Hendricks appeals the district court's denial of his motion to suppress evidence seized in a search of his residence pursuant to a warrant. We affirm.

FACTS

On May 10, 1983 a customs officer at Los Angeles inspected a cardboard box arriving from Brazil addressed to Dennis Hendricks, 2835 North Sidney, Tucson, Arizona. The address on the box was Hendricks's home address, but was there for identification only because the box was shipped in such a manner that Hendricks was required to pick it up personally. Inside the box was a suitcase in which the inspector found hidden 5-7 pounds of cocaine. The customs agent sent the box on to Tucson, where it was turned over to Drug Enforcement Administration (DEA) officials.

While the DEA agents were holding the box, they gathered the following additional information, which was contained in the affidavit for the search warrant:

1. Dennis Hendricks and Gigi Ghazarosian lived at 2835 N. Sidney.

2. Ghazarosian used to live at 3344 N. Kelvin.

3. 3344 N. Kelvin is the location of a business named "Brazilian Imports"

4. Dennis Hendricks is the operator of Brazilian Imports.

5. On March 31, 1983 a greeting card containing 10.4 grams of cocaine arrived at Los Angeles Airport addressed to Brazilian Imports, 3344 N. Kelvin.

6. Ghazarosian's car is registered to 3344 N. Kelvin and is in the long-term parking section of the Tucson Airport.

Page 654

Upon this evidence, and knowing that the box was at the airport in the possession of DEA agents, the magistrate issued a warrant for a search of Hendricks's residence at N. Sidney. Although the warrant states that "on the premises known as 2835 N. Sidney ... there is now being concealed ... a ... cardboard box [containing cocaine]," (emphasis added) it further states "this search warrant is to be executed only upon the condition that the above described box is brought to the aforesaid premises" (emphasis added).

Hendricks made a motion to suppress, which was denied by the district court. Hendricks then entered a conditional guilty plea under Fed.R.Crim.P. 11(a)(2) and was sentenced to 3 years imprisonment and 5 years probation on one count of transportation of cocaine in violation of 21 U.S.C. Sec. 952(a) (1982). Hendricks appeals only the denial of the suppression motion.

DISCUSSION

We must inquire first whether probable cause existed for issuance of the warrant. If so, our inquiry is at an end. If not, we look to whether the searching officers nonetheless acted reasonably and in good faith. United States v. Leon, --- U.S. ----, 104 S.Ct. 3405, 3422-23, 82 L.Ed.2d 677 (1984).

I

The Search Warrant Was Issued Without Probable Cause.

In making the determination as to probable cause, our role is limited to "ensuring that the magistrate had a 'substantial basis for ... conclud[ing]' that probable cause existed." Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983) (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960)). The Supreme Court has stressed that "courts must continue to conscientiously review the sufficiency of affidavits in which warrants are issued," Gates, 103 S.Ct. at 2332, see Leon, 104 S.Ct. 3422-23. The condition inserted into the warrant by the magistrate, that the warrant was not to be executed until the suitcase arrived at the house, is the principal source of our concern in this case.

If the suitcase had been in the house, or if probable cause existed to believe it was there, issuance of the warrant would have been proper. However, at the time the warrant was issued, the magistrate knew the suitcase was in the possession of the agents, not at the house. The agents, by calling Hendricks to come for the suitcase tried to ensure that the condition subsequent inserted into the warrant would happen. 1 However, at the time the warrant issued and, in fact, until the suitcase was actually brought to the house, there was no certainty that it would ever be brought there.

In Durham v. United States, 403 F.2d 190 (9th Cir.1968), we said, "The facts ... must be sufficient to justify a conclusion ... that the property which is the object of the search is...

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81 practice notes
  • People v. Tuadles, No. B043992
    • United States
    • California Court of Appeals
    • July 9, 1992
    ...nexus between Mercado's residence and criminal activity. This reasoning is supported by United States v. Hendricks, (9th Cir.1984) 743 F.2d 653, In Hendricks, a customs officer discovered a box containing cocaine addressed to defendant's home. Although the box had defendant's name and addre......
  • U.S. v. Savoca, No. 83-3510
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • May 3, 1985
    ...743 F.2d 1261, 1265-66 (8th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 1196, 84 L.Ed.2d --- (1985); United States v. Hendricks, 743 F.2d 653, 656 (9th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 1362, 84 L.Ed.2d 382 8 The affidavit did not state, for example, whether the locati......
  • State v. Wright, No. 17057
    • United States
    • Court of Appeals of Idaho
    • April 6, 1989
    ...am satisfied that the Leon good faith exception to the exclusionary rule was applied properly here. See, e.g., United States v. Hendricks, 743 F.2d 653 (9th Cir.1984). Accordingly, I concur in the result to uphold the search in this BURNETT, Judge, specially concurring. I agree with Judge S......
  • People v. Deitchman, No. 84SA16
    • United States
    • Colorado Supreme Court of Colorado
    • February 11, 1985
    ...deterrence of [constitutional] violations." 468 U.S. at ----, 104 S.Ct. at 3420, 82 L.Ed.2d at 697. See also United States v. Hendricks, 743 F.2d 653 (9th Cir.1984). Moreover, any incremental deterrent benefit that might be achieved by excluding the evidence must be balanced against the sub......
  • Request a trial to view additional results
81 cases
  • People v. Tuadles, No. B043992
    • United States
    • California Court of Appeals
    • July 9, 1992
    ...nexus between Mercado's residence and criminal activity. This reasoning is supported by United States v. Hendricks, (9th Cir.1984) 743 F.2d 653, In Hendricks, a customs officer discovered a box containing cocaine addressed to defendant's home. Although the box had defendant's name and addre......
  • U.S. v. Savoca, No. 83-3510
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • May 3, 1985
    ...743 F.2d 1261, 1265-66 (8th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 1196, 84 L.Ed.2d --- (1985); United States v. Hendricks, 743 F.2d 653, 656 (9th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 1362, 84 L.Ed.2d 382 8 The affidavit did not state, for example, whether the locati......
  • State v. Wright, No. 17057
    • United States
    • Court of Appeals of Idaho
    • April 6, 1989
    ...am satisfied that the Leon good faith exception to the exclusionary rule was applied properly here. See, e.g., United States v. Hendricks, 743 F.2d 653 (9th Cir.1984). Accordingly, I concur in the result to uphold the search in this BURNETT, Judge, specially concurring. I agree with Judge S......
  • People v. Deitchman, No. 84SA16
    • United States
    • Colorado Supreme Court of Colorado
    • February 11, 1985
    ...deterrence of [constitutional] violations." 468 U.S. at ----, 104 S.Ct. at 3420, 82 L.Ed.2d at 697. See also United States v. Hendricks, 743 F.2d 653 (9th Cir.1984). Moreover, any incremental deterrent benefit that might be achieved by excluding the evidence must be balanced against the sub......
  • Request a trial to view additional results

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