U.S. v. Minis

• Decision Date: 20 January 1982
• Docket Number: No. 81-1116,81-1116
• Citation: 666 F.2d 134
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Kim Edward MINIS, Defendant-Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 134

666 F.2d 134

UNITED STATES of America, Plaintiff-Appellant, v. Kim Edward MINIS, Defendant-Appellee.

No. 81-1116

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Jan. 20, 1982.

LeRoy M. Jahn, Asst. U.S. Atty., San Antonio, Tex., Archie Carl Pierce, Asst. U.S. Atty., Austin, Tex., for plaintiff-appellant.

Mark Cohen, Austin, Tex., for defendant-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before CLARK, Chief Judge, RANDALL and WILLIAMS, Circuit Judges.

RANDALL, Circuit Judge:

In a search of a six acre rural residence under the custody of defendant-appellant Kim Edward Minis, federal agents discovered multi-pound quantities of marijuana being processed by Minis, approximately three and one-half ounces of cocaine in a safe in the kitchen, and two fields of growing marijuana. Minis was charged in a two-count indictment with possession with intent to distribute cocaine and marijuana in violation of 21 U.S.C. § 841(a)(1). The district court, however, granted Minis' motion to suppress the evidence seized in the search on the grounds that the affidavit in support of the search warrant pursuant to which the search was conducted failed to establish the necessary probable cause. The government appeals, arguing: (1) that the district court erred in overruling the magistrate's determination that probable cause existed; and (2) that assuming probable cause did not exist for the issuance of the search warrant, the good-faith exception to the exclusionary rule should have been applied. We conclude that the affidavit supporting the search warrant did establish the necessary probable cause, and we therefore VACATE the district court order granting Minis' motion to suppress and REMAND for consideration of Minis' arguments not resolved in the original proceeding.

I. Statement of Facts.

On October 18, 1980, a search warrant was issued for the search of the six acres of property, "including the personal residence located therein and all outbuildings," located at 14808 Hamilton Pool Road, Bee Cave, Texas and identified as the Crooked Oak Ranches. ¹ On executing the search warrant, agents discovered Minis processing "multi-pound" quantities of marijuana in the living room of the one-bedroom residence located on the property. ² They also discovered approximately three and one-half ounces of cocaine in a combination safe in the kitchen of the searched residence and two cultivated fields of marijuana approximately 100 to 150 yards from the residence.

The warrant pursuant to which the search took place was issued on the basis of the affidavit of United States Customs Service Special Agent Kenneth Brumfield. The affidavit set out the personal observations of Brumfield and other agents which allegedly gave them probable cause to believe that William Everett, under their surveillance as part of an investigation of a supposed international drug smuggling conspiracy, was "cultivating marijuana at the location of 14808 Hamilton Pool Road, Bee Caves, Texas, is distributing controlled substances, and secreting the profits derived therefrom in foreign corporations in the Cayman Islands, British West Indies." The warrant therefore authorized the search of the six acres of property, which the affidavit indicated was owned by Everett, located at 14808 Hamilton Pool Road and identified as the Crooked Oak Ranches, including the personal residence located therein and all outbuildings, for controlled substances, currency derived from the sale of such controlled substances and books, ledgers, correspondence and records relating to narcotics transactions and the laundering of currency through foreign corporations.

The affidavit first set out a series of intercepted telephone communications to and from telephone numbers in California, the interception of which was allegedly authorized by a court order from the district court for the Eastern District of California on June 7, 1980. The interception order was allegedly based on information that a group known as the Brotherhood of Eternal Love was going to smuggle approximately 8,000 kilos of hashish into the United States. The first three conversations summarized in the affidavit ³ took place in September 1980 and indicated that Travis G. Ashbrook and a person referred to as "Bill," would be taking a trip "out of the United States with a large amount of United States currency well in excess of the $5,000 required to be reported by 31 U.S.C. 1101." ⁴ Ashbrook is described in the affidavit as prominent in the Brotherhood of Love, as documented in United States Customs files since 1969, and as having been arrested and convicted of smuggling hashish into the United States in 1969 by a federal court in California. Brumfield believed that the money to be taken out of the United States was to be a down payment for the aforementioned narcotics transaction and for repairs to the vessel which was to be used to smuggle the narcotics into the United States. The fourth conversation allegedly took place on July 20, 1980 between William Everett (believed to be the person referred to as "Bill"), on a telephone located at 2611 Bee Cave Road # 102, Austin, Texas, and Patrick Brignole, allegedly a partner of Ashbrook. The synopsis of this conversation was as follows:

"Bill advised that he had 'got the house along pretty good and everything,' and that his garden and plants were starting to come along really good, though the heat wasn't helping the situation. Bill Everett and Pat Brignole discuss the cultivation process and Everett states that he 'did a whole bunch of A's.' (Note-"A's" are known to me to be the African variety of marihuana plants.)"

An excerpt of the conversation was attached to and incorporated in the affidavit.

In addition to the intercepted conversations, the affidavit set out certain activities of Ashbrook and Everett during the week preceeding the search of the Hamilton Pool Road property disclosed by continuing surveillance by United States Customs special agents. The surveillance revealed that on October 11, 1980 Ashbrook left his residence in Lone Pine, California and travelled to Austin. He arrived in Austin on October 13, 1980 where he met with Everett. On October 13, 1980, at 8:00 a. m., Ashbrook and Everett departed 2611 Bee Cave Road, Apartment 102, Austin, Texas and drove to the property located at 14808 Hamilton Pool Road, Bee Cave, Texas. ⁵ The affidavit indicates that when they left the Bee Cave Road apartment, Ashbrook placed a tan leather case in the truck, but that when they returned to the Bee Cave Road apartment, approximately two hours later, no tan leather case was removed by them. Later that day, they were observed going to an Austin travel agency where they purchased two round-trip tickets from Houston, Texas to Grand Cayman Island, British West Indies, to depart on October 16, 1980 on Cayman Airways and to return on October 18, 1980. ⁶ Ashbrook and Everett were again observed going to the Hamilton Pool Road property on October 14 and 15, 1980 for about four hours each day. On the morning of October 16, 1980, Everett was again observed going to the Hamilton Pool Road property for about one hour.

Finally, the affidavit discloses that later on the morning of October 16, 1980, Ashbrook and Everett were observed departing the Bee Cave Road apartment from which they travelled to Houston, Texas and then to Houston Intercontinental Airport. They were observed checking in at the Cayman Airways ticket counter for Flight 63 to the Cayman Islands. When Ashbrook and Everett failed to fill out United States Customs currency reporting forms before taking their seats on the plane, agents executed a federal search warrant on their checked luggage and their persons. In the luggage, the agents found, among other things, $170,000 in United States currency and letters, documents and correspondence indicating an interest in a foreign corporation in the Cayman Islands, British West Indies.

II. The District Court Finding of No Probable Cause.

A preliminary hearing was held, on October 31, 1980, at which the United States Magistrate found probable cause for the search of the Hamilton Pool Road property. On January 7, 1981, a hearing was held on Minis' motion to suppress the evidence seized in this search, however, and on January 14, 1981, the district court ordered that all evidence seized in the search be suppressed in the trial of Minis. ⁷ The district court held that the information contained in the affidavit did not satisfy the test of probable cause and that, because the affidavit failed to establish probable cause to believe either that marijuana was being grown on the premises or that records of narcotics and foreign currency laundering transactions were present on the premises, the search warrant and subsequent search conducted pursuant to the warrant were invalid. ⁸

Because the decision of the district court was a determination only of the narrow question whether the information contained in the affidavit satisfied the test of probable cause, it is a ruling of law based strictly on written evidence, and our review is therefore not limited to the "clearly erroneous" standard. See, e.g., United States v. Pulvano, 629 F.2d 1151, 1156 (5th Cir. 1980). We instead make an independent review of the sufficiency of the affidavit. Id. at 1156-57 n.7. In doing so, though, we are mindful of the oft-cited opinion of this court in Bastida v. Henderson, 487 F.2d 860, 863 (5th Cir. 1973):

In issuing a search warrant the magistrate must exercise his own judgment as to whether the facts alleged in the affidavit constitute probable cause for issuance of the warrant, he must act on the entire picture disclosed to him, he is entitled to use his common sense, and the courts have gone so far as to say that when this is done his determination is conclusive in the absence of arbitrariness.

(Emphasis added.) Accord, United States v....