U.S. v. Janus Industries

• Decision Date: 18 January 1995
• Docket Number: 94-1113 and 94-1114,Nos. 94-1074,94-1075,s. 94-1074
• Citation: 48 F.3d 1548
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. JANUS INDUSTRIES, doing business as Acapulco Smoke Shop, and James B. Janus, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1548

48 F.3d 1548

UNITED STATES of America, Plaintiff-Appellee, v. JANUS INDUSTRIES, doing business as Acapulco Smoke Shop, and James B. Janus, Defendants-Appellants.

Nos. 94-1074, 94-1075, 94-1113 and 94-1114.

United States Court of Appeals Tenth Circuit.

Jan. 18, 1995.

Wade H. Eldridge, Denver, CO, for appellants.

John M. Hutchins, Asst. U.S. Atty. (Henry L. Solano, U.S. Atty., D. Colo., and Kathleen M. Tafoya, Asst. U.S. Atty., with him on the brief), Denver, CO, for appellee.

Before ANDERSON and KELLY, Circuit Judges, and COOK, ^* District Judge.

STEPHEN H. ANDERSON, Circuit Judge.

Defendant James B. Janus and his company Janus Industries, were charged in a 165-count indictment with sales of drug paraphernalia, 21 U.S.C. Secs. 857 and 863, cultivation of marijuana, 21 U.S.C. Sec. 841(a)(1), and money laundering, 18 U.S.C. Sec. 1956(a)(1)(A)(i). The jury returned guilty verdicts as to both Janus and Janus Industries on two of the drug paraphernalia counts, and a guilty verdict as to Mr. Janus on the marijuana count. The parties resolved the money laundering counts by stipulation. Mr. Janus was sentenced to twenty-four months incarceration and required to pay a $50,000 fine. Janus Industries was fined $14,000. The defendants appeal, contending that (1) the district court erred in refusing to grant defendants' motion to suppress evidence gathered pursuant to the search warrant on the grounds that the underlying affidavit was insufficient to establish probable cause, and the warrant obtained by the officers was unconstitutionally overbroad; (2) the district court erred in concluding that the marijuana found during the search was in plain view; (3) the Drug Paraphernalia Act, 21 U.S.C. Sec. 863, is unconstitutional because it lacks an interstate commerce element; (4) the district court abused its discretion in denying defendants' motion for severance; (5) the district court erred in refusing to give defendants' tendered jury instruction No. 5 which stated that the drug paraphernalia statute does not apply to any person legally authorized to distribute such items; (6) the defendants were denied a fair trial because of the prosecutor's statement in closing argument that the defendants' items were "evil"; and (7) the district court erred at sentencing by granting a two-level increase for obstruction of justice and by failing to grant a two-level reduction for acceptance of responsibility. We affirm.

BACKGROUND

This action arose from a nationwide United States Customs operation ("Operation Pipe") investigating suspected drug paraphernalia dealerships or "head shops." Special Agent Tracy Lembke led the Customs investigation in both Colorado and Wyoming, during the course of which Customs obtained search warrants for seven different shops in the Denver-metro area that were suspected of selling drug paraphernalia. Under Lembke's direction, search teams were divided up and the several warrants were executed simultaneously on January 21, 1991.

While executing one of these warrants at a shop called Rolling Stone Enterprises ("Rolling Stone") customs agents discovered information suggesting that the Acapulco Smoke Shop located at 3520 Brighton Boulevard, although not originally one of the targeted locations, was also engaged in the drug paraphernalia business. Customs then sent Agent Santelli to the Acapulco Smoke Shop as a "potential customer" to verify whether they were selling drug paraphernalia on the premises. Agent Santelli reported that he did see drug paraphernalia for sale and that an employee of the Acapulco Smoke Shop, later identified as Janus, told Santelli that he better get what he wanted tonight because the "narcos were out" and he had "trimmed his shelves." R. Vol. 4 at 114.

Based on the information provided by Agent Santelli and the information recovered in investigating Rolling Stone, Agent Lembke then drafted an affidavit for a warrant to search the premises at 3520 Brighton Boulevard. The subsequently issued warrant authorized the agents to search Janus's premises for "[a]ny and all drug paraphernalia" as defined in the drug paraphernalia statute as well as various documents and business records related to the sale of drug paraphernalia or the proceeds from such sales. ¹ R. Vol. 1, Doc. 18, Ex. A.

Prior to the issuance and arrival of the search warrant, however, Agent Lembke ordered the two-story building at 3520 Brighton Boulevard secured because she had reason to suspect that evidence may be removed. R. Vol. 3 at 4. Three agents arrived at 6:00 p.m. to "sweep" the premises. The agents found three individuals on the premises, one of whom was Janus. The agents informed the individuals that they were free to leave, and ultimately only Janus remained. At some point after securing the premises but prior to the arrival of the warrant, the agents heard a commotion upstairs in the bedroom area; Janus was apparently moving things around. An agent asked Janus what was going on, and Janus reportedly said either "nothing" or "lied." R. Vol. 7 at 810.

By the time agent Lembke arrived with the warrant later that evening, approximately twenty-five federal agents were on the premises to help conduct the search. Agent Lembke went directly to Janus and presented him with a copy of the warrant, reviewed what the agents were there for, and advised him of his rights. Following a video taping of the premises, the agents began searching.

Among other things, the search uncovered a hydroponic garden or grow area in a partly hidden closet upstairs. The closet contained a grow light, watering system, and was panelled with Styrofoam. There were no plants, but the lights were on and the soil was moist. Meanwhile, Agent Burke, an IRS agent who had been assigned to look for documents and financial records in the bedroom area, noticed a dresser that had what appeared to be a concealed bottom drawer. Upon opening the drawer he found seven marijuana plants with moist dirt still clinging to the roots.

DISCUSSION

I. Motion to Suppress: Validity of Search Warrant

Before trial Janus moved to suppress all evidence derived from the search on January 21, 1991, on the grounds that (1) Agent Lembke's underlying affidavit was insufficient to establish probable cause to search Janus's premises and (2) the warrant was overbroad because it failed to state with particularity the things to be seized. The district court denied that motion following a hearing.

In reviewing the denial of a motion to suppress, we must "accept the trial court's findings of fact unless clearly erroneous." United States v. Dahlman, 13 F.3d 1391, 1394 (10th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1575, 128 L.Ed.2d 218 (1994); United States v. Wicks, 995 F.2d 964, 968 (10th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 482, 126 L.Ed.2d 433 (1993); United States v. Carr, 939 F.2d 1442, 1443 (10th Cir.1991). However, "[w]e review de novo the 'ultimate determination of Fourth Amendment reasonableness.' " United States v. Little, 18 F.3d 1499, 1503 (10th Cir.1994) (quoting United States v. Allen, 986 F.2d 1354, 1356 (10th Cir.1993)). We must view the evidence in the light most favorable to the government. Wicks, 995 F.2d at 969; Carr, 939 F.2d at 1443.

The Fourth Amendment provides that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV; United States v. Mesa-Rincon, 911 F.2d 1433, 1436 (10th Cir.1990).

A. Probable Cause

The existence of probable cause is a common sense standard. Wicks, 995 F.2d at 972. The Supreme Court has stated that "probable cause is a fluid concept--turning on the assessment of probabilities in particular factual contexts--not readily, or even usefully, reduced to a neat set of legal rules." Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 2329, 76 L.Ed.2d 527 (1983). "The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him ... there is a fair probability that contraband or evidence of a crime will be found in a particular place." Id. at 238, 103 S.Ct. at 2332.

A reviewing court must give great deference to the magistrate's determination of probable cause, United States v. $149,442.43 in United States Currency, 965 F.2d 868, 872 (10th Cir.1992), and we should uphold that conclusion if the "totality of the information contained in the affidavit provided a substantial basis for finding there was a fair probability that evidence of criminal activity would be found" at the Acapulco Smoke Shop. United States v. Hager, 969 F.2d 883, 887 (10th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 437, 121 L.Ed.2d 357 (1992).

Janus argues that the only information the magistrate had suggesting that wrongdoing would be found in the Acapulco Smoke Shop was Agent Santelli's "bald assertion" that he saw "drug paraphernalia." Janus claims that this mere conclusion, without specific examples of precisely what Santelli saw, is insufficient to justify the issuance of a search warrant.

The affidavit in support of the January 21, 1991 search warrant indicates that Agent Santelli reported seeing "a variety of items defined as drug paraphernalia under [the Drug Paraphernalia Statute]" for sale at 3520 Brighton Boulevard. Although Agent Santelli's description was cast in statutory terms, attachment two of the application for the warrant recites subsection (d) of the statute which describes "drug paraphernalia" in great detail and provides several examples.

Moreover, the affidavit contained additional information providing further indicia supporting the conclusion that drug paraphernalia would be found on the premises. For example, the affidavit provided extensive background information related to the investigation of Rolling Stone Enterprises. It stated that the agents had...