U.S. v. Mueller

• Decision Date: 22 May 1990
• Docket Number: No. 89-1589,89-1589
• Citation: 902 F.2d 336
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John C. MUELLER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 336

902 F.2d 336

UNITED STATES of America, Plaintiff-Appellee, v. John C. MUELLER, Defendant-Appellant.

No. 89-1589.

United States Court of Appeals, Fifth Circuit.

May 22, 1990.

Philip E. Sanders, Austin, Tex., for defendant-appellant.

Philip Police, Asst. U.S. Atty., LeRoy Morgan Jahn, U.S. Atty., James H. DeAtley, Asst. U.S. Atty., San Antonio, for plaintiff-appellee.

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

Before KING, GARWOOD, and SMITH, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

On September 10, 1988, Texas state law enforcement officers conducted a search of the premises and vehicles at 4905 Hudson Bend Road, Travis County, Texas, pursuant to a warrant authorizing the officers to search for controlled substances. The affidavit upon which the search warrant was based stated as follows:

... on or about the 10th day of September A.D., 1988, Your affiant received a call in reference to a chemical odor in the area of the Dry Dock Pub located at 4919 Hudson Bend Road, Travis County, Texas, your affiant then who has been a peace officer for over ten years and who is trained and knowledge-able of those chemicals commonly used in the manufacture of Methamphetamine which is a controlled substance, went to Dry Dock Pub located at 4919 Hudson Bend Road, Travis County, Texas. Your affiant then detected a strong chemical odor of those chemicals commonly used in the manufacture of Methamphetamine which is a controlled substance at that location. Your affiant was then able to locate that the chemical odor of those chemicals commonly used in the manufacture of Methamphetamine was coming from the residence, building, out buildings, and or vehicles located at 4905 Hudson Bend Road, Travis County, Texas. As your affiant was checking the above location an unknown White male who lived directly across the fence from 4905 Hudson Bend Road, informed this affiant that the odor the affiant was smelling was that of Methamphetamine and that it was coming from across the fence from 4905 Hudson Bend Road, Travis County, Texas.

The searching officers seized a methamphetamine laboratory in full operation and various weapons on the premises and arrested Joe Segler, Donna M. Sirois, and appellant John C. Mueller. All three were subsequently indicted for manufacture of methamphetamine and various other charges.

The district court denied Mueller's motion to suppress. In accordance with Fed.R.Crim.P. 11(a)(2), and pursuant to a plea bargain agreement, Mueller pleaded guilty to the manufacture of methamphetamine in violation of 21 U.S.C. Sec. 841(a)(1), conditioned on his ability to appeal the denial of his suppression motion. On June 15, 1989, following his filing of various objections to the presentence investigation report (PSI), Mueller was sentenced, at a lengthy hearing, to 240 months' imprisonment, three years' supervised release, a $25,000 fine, and a $50 special assessment.

I.

Mueller argues that much of the evidence used against him was obtained in an illegal search or seizure in violation of his constitutional rights and thus that the district court erred in denying his motion to suppress such evidence. In particular, he asserts that the warrant under which the officers searched his residence lacked probable cause, that the officers did not act in good faith in following the warrant, and that he was improperly denied an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).

All of Mueller's contentions revolve around three allegations of factual deficiencies in the affidavit supporting the warrant: first, that the naming of the addresses of the residence and of the Dry Dock Pub were not sufficiently specific; second, that Officer Hinkel, upon whose affidavit the warrant was issued, did not sufficiently establish his ability and expertise to identify by smell the methamphetamine that he reported having detected; third, that any odor smelled by the officer could not have been connected with the residence searched. In support of this third contention, Mueller presented the trial court with the affidavit of an associate professor of meteorology. Based upon data from the National Weather Service and an inspection of the area around the house searched by the officers, the professor concluded that a person standing at the Dry Dock Pub (where the officer had stated he was when he first detected the odor) "would be very unlikely to detect any odor emitting from 4905 Hudson Road" (the address of the house searched).

A.

Mueller contends, based upon the affidavit's failure to explain how the officer had the expertise and ability to recognize the methamphetamine smell and upon the meteorologist's subsequent affidavit, that the magistrate lacked probable cause to issue the warrant. However,

[p]rinciples of judicial restraint and precedent dictate that, in most cases, we should not reach the probable cause issue if a decision on the admissibility of the evidence under the good-faith exception of [United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984),] will resolve the matter.

....

In Leon, the Court held that evidence obtained by law enforcement officials acting in objectively reasonable good-faith reliance upon a search warrant is admissible in the prosecution's case-in-chief, even though the affidavit on which the warrant was based was insufficient to establish probable cause. Issuance of a warrant by a magistrate normally suffices to establish good faith on the part of law enforcement officers who conduct a search pursuant to the warrant.... [T]he Court set forth four exceptions to this rule.

United States v. Craig, 861 F.2d 818, 820-21 (5th Cir.1988) (citations omitted).

These exceptions from Leon are as follows:

(1) if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth.

(2) where the issuing magistrate wholly abandoned his judicial role in the manner condemned in Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 99 S.Ct. 2319, 60 L.Ed.2d 920 (1979);

(3) [where the] warrant [is] based on an affidavit 'so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.'

(4) [where the warrant is] so facially deficient--i.e., in failing to particularize the place to be searched or the things to be seized--that the executing officers cannot reasonably presume it to be valid.

468 U.S. at 923, 104 S.Ct. at 3421.

The first exception is discussed in part I.B., infra. As to the second, Mueller presents no evidence that the judge abandoned his judicial role. In fact, apart from his assertion that the affidavit did not provide probable cause (which is directed at the third exception), Mueller presents no evidence of any error on the judge's part. Nothing suggests that the magistrate had any bias or interest in issuing the warrant, or that he dispensed with his neutral and detached position to become involved in the evidence-gathering related to issuance of the warrant as did the town justice in Lo-Ji Sales. See Lo-Ji Sales, 442 U.S. at 326-27, 99 S.Ct. at 2324-25.

Nor does the third exception apply. Officer Hinkel, who gave the affidavit that led to the issuance of the search warrant, explained that he was trained and knowledgeable with regard to chemicals used in the manufacture of methamphetamines. In addition to detecting methamphetamine himself, Hinkel was also informed by a bystander that the odor was methamphetamine and was emanating from 4905 Hudson Bend Road. This, together with the officer's own tracing of the odor to 4905 Hudson Bend Road, which was the address of the house later searched, provides sufficient "indicia of probable cause" such that official belief in the existence of probable cause was not entirely unreasonable, especially given the presumption of reliability of the affidavit, see United States v. May, 819 F.2d 531, 536 (5th Cir.1987), and the lack of reason to disbelieve the bystander. ¹

The professor's report cannot cast any shadow upon the good-faith reliance of the officers executing the warrant. Even if the officers did happen to observe that the wind was blowing away from the Dry Dock Pub (and the professor's report by no means proves that this was the case), it would not be entirely unreasonable for them to assume that, at the time Hinkel made the affidavit, the wind was either blowing in a different direction or was calm enough not to displace the smell. It also would not be entirely unreasonable for the warrant-executing officers to assume that the odor, at the time of Hinkel's investigation, might have been so pungent and concentrated that it would have been detectable even some distance upwind.

Finally, the fourth exception does not apply. The warrant stated the correct address of the house to be searched. Even though located on a mailbox across the street rather on the house itself, the stated address, together with the affidavit's statement about the odor coming from the dwelling "across the fence" to the Dry Dock Pub, uniquely describes the house searched, given that the house was directly across the street from the mailbox and was separated from both the Dry Dock Pub and the other residences in the area by a fence.

B.

The denial of a Franks hearing is reviewed de novo. United States v. DiCesare, 765 F.2d 890, 895 (9th Cir.1985). In Franks, 438 U.S. at 155-56, 98 S.Ct. at 2676-77, the Court declared,

[W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request. In the event that at...