U.S. v. Privette

• Decision Date: 15 November 1991
• Docket Number: No. 90-7052,90-7052
• Citation: 947 F.2d 1259
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ira Wayne PRIVETTE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1259

947 F.2d 1259

UNITED STATES of America, Plaintiff-Appellee, v. Ira Wayne PRIVETTE, Defendant-Appellant.

No. 90-7052.

United States Court of Appeals Fifth Circuit.

Nov. 15, 1991.

Rehearing Denied Dec. 12, 1991.

Danny D. Burns, Ft. Worth, Tex. (Court-appointed), for defendant-appellant.

Joe C. Lockhart, Asst. U.S. Atty., Marvin Collins, U.S. Atty., Fort Worth, Tex., for plaintiff-appellee.

Appeal From the United States District Court for the Northern District of Texas.

Before WISDOM, HIGGINBOTHAM and SMITH, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Appellant Ira Wayne Privette appeals from his conviction of one conspiracy count, one count of possession of amphetamines with intent to distribute and two counts of using a firearm during the commission of a drug trafficking crime. Privette makes two arguments on appeal. First, he challenges the admission of evidence obtained in a search of his warehouse, alleging that the affidavit used to obtain the search warrant contained false or misleading statements. Because the affidavit supports a finding of probable cause when read without the challenged statements, the trial court did not err in denying Privette's motion to suppress. Second, Privette challenges his conviction and sentence for the two firearms counts because the indictment charges that both counts were committed during the same drug trafficking crime. Because we agree that the indictment did not sufficiently link each firearms count to a separate drug trafficking offense, we vacate the conviction and sentence on one of them.

I

On March 8, 1988, Fort Worth Police officers arrested Charles Apodaca at his home on a complaint that he had assaulted a postal employee who had maced his dog. During the arrest, Officer Fitch noticed that Apodaca had a strong odor normally associated with amphetamine manufacture. Apodaca told the officers he had just produced 14 pounds of amphetamines as part of an agreement with Wayne Privette. Apodaca told the police that Privette lived and dealt with drugs in a local warehouse. He gave them the address and a detailed description of the warehouse.

The officers set up surveillance at the warehouse that afternoon. Further police investigation corroborated Apodaca's statements. A computer check of a vehicle at the scene indicated that it was registered to Privette. The leasing office told police that the warehouse was leased to Privette. The officers then obtained and executed a search warrant at the warehouse. They found Privette along with some drugs, weapons, a set of scales, and a large amount of currency. These items were later admitted against Privette at trial.

Privette was convicted of one count of conspiracy to manufacture amphetamine and to distribute and possess with intent to distribute amphetamine, one count of possession of amphetamine with intent to distribute and two counts of using firearms during and in relation to a drug trafficking crime, 18 U.S.C. § 924(c). He was sentenced to 210 months imprisonment on the two drug trafficking crimes, to run concurrently. On the firearms counts, he was sentenced to 120 months on one and 60 months on the other to run consecutive to each other and consecutive to the sentence for the drug trafficking crimes.

II

Privette challenges the search of his warehouse on the basis that the affidavit used to obtain the warrant contained false or misleading statements. Privette points to two statements in the affidavit which are allegedly false: that Apodaca had previously used amphetamines and that the affiant had previously arrested Apodaca for possession of amphetamine. His argument fails because even when the statements he challenges are excised, the affidavit contains facts sufficient to establish probable cause.

Even if the defendant makes a showing of deliberate falsity or reckless disregard for the truth by law enforcement officers, he is not constitutionally entitled to a hearing "if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause." Franks v. Delaware, 438 U.S. 154, 171-72, 98 S.Ct. 2674, 2684-85, 57 L.Ed.2d 667 (1978).

We evaluate probable cause under a totality-of-the-circumstances test, rather than any rigid set of criteria. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527 (1983). Probable cause existed here without any of the challenged material. The affidavit asserted that:

1) The informant had been in the warehouse within the past 24 hours and observed Privette in possession of a large quantity of white powdery substance, which Privette represented as amphetamine;

2) The informant said that Privette was in possession of a large amount of chemicals and glassware used in the manufacture of amphetamine and described them.

3) The informant said that Privette was living in the warehouse and described a trailer sitting in front of the door. He also told them that stolen automobiles could be found at the location.

4) The police officer went to the location following the informant's directions and found it to be as described by the informant.

5) The police officers found a truck parked in front of the warehouse to be an outstanding stolen vehicle;

6) A Camaro parked in front of the warehouse was found to be registered to Privette;

7) The officer checked with the leasing office and confirmed that warehouse was leased to Privette.

Privette argues that without the challenged information the affidavit fails to provide a basis for the magistrate to evaluate the credibility of the informant. We disagree. In Gates, the Supreme Court rejected the rigid two-prong test which required that the affidavit demonstrate both the informant's reliability and veracity. The "practical common-sense judgment called for in making a probable cause determination" can be made on the basis of corroboration of the informant's statements by police investigation. Gates, 103 S.Ct. at 2335. In Gates, an anonymous letter was used to establish probable cause because its details were corroborated by police investigation. Uncertainty about the veracity of an informant can also be compensated for by detail of the statement or internal consistency of the statement and surrounding facts. United States v. Phillips, 727 F.2d 392 (5th Cir.1984); Massachusetts v. Upton, 466 U.S. 727, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984). Here the detail and internal consistency of Apodaca's statements and the corroboration provided by the police investigation gave the magistrate facts sufficient to evaluate Apodaca's credibility.

Finally, Privette argues that this court should hold that a showing of deliberate falsehood in an affidavit renders the warrant void whether or not the statements were necessary to the finding of probable cause. Even if we were inclined toward such an approach, it is foreclosed by Franks. The district court did not err in admitting the evidence obtained in the search of the warehouse.

III

The indictment charged Privette with two drug offenses and two firearms...