U.S. v. Rettig

• Decision Date: 17 October 1978
• Docket Number: Nos. 76-1407,76-1963,s. 76-1407
• Citation: 589 F.2d 418
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas RETTIG, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Gary NOWAK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 418

589 F.2d 418

UNITED STATES of America, Plaintiff-Appellee, v. Thomas RETTIG, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Gary NOWAK, Defendant-Appellant.

Nos. 76-1407, 76-1963.

United States Court of Appeals Ninth Circuit.

Oct. 17, 1978.

As Amended Nov. 27, 1978.

Rehearing Denied Jan. 25, 1979.

John J. Cleary (argued), San Diego, Cal., Robert C. Moest (argued), Los Angeles, Cal., for defendants-appellants.

Ronald L. Gallant, Asst. U. S. Atty. (argued), Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before CHAMBERS, CUMMINGS ^* and KENNEDY, Circuit Judges.

KENNEDY, Circuit Judge:

Rettig and Nowak appeal from judgments of conviction entered after a jury found them guilty of multiple conspiracies to import cocaine and to possess cocaine with intent to distribute. 21 U.S.C. §§ 841(a)(1), 846, 952, 960, 963. We reverse the convictions of both appellants.

The indictment charged that on several occasions Rettig or Nowak or both went to Lima, Peru, purchased cocaine from a Peruvian source, and then gave the cocaine to hired couriers to carry back to the United States by various clandestine methods. Witnesses for the Government testified that Rettig and Nowak originated the scheme and financed it. In addition to this testimony, the Government built its case in substantial part on evidence seized from Rettig's residence at Morro Bay, California. The question on this appeal is whether or not that evidence was discovered by a lawful search.

The search of the residence purportedly was executed pursuant to a search warrant issued by a state judge on April 3, 1975, but a full understanding of the circumstances of the case requires consideration of the events of the preceding day. On April 2 Drug Enforcement Agency agents asked a federal magistrate in Los Angeles to issue an arrest warrant for Rettig on the cocaine importation charges and also requested a search warrant directed to his Morro Bay residence. The magistrate issued the arrest warrant, but declined to issue the search warrant, finding that the information the agents adduced was stale.

The agents executed the arrest warrant the following day, April 3, and added a ruse. DEA agents and local police covered all the exits from the house while one agent made an anonymous telephone call "warning" Rettig that federal officers were on the way with an arrest warrant And a search warrant. The agents hoped that Rettig would attempt to flee with evidence linking him to the cocaine charges and that in this way they could seize material that might otherwise be secreted and obtainable only by a search warrant. After an agent notified his colleagues by radio that he had made the call to Rettig, agent Kuehl went to the front door of the residence, knocked, and announced his purpose to execute the arrest warrant. Receiving no response, he entered the house by force and went to the second floor. There he found Rettig in the bathroom attempting to flush approximately one pound of marijuana down the toilet. Rettig was taken into custody. Some of the agents remained on the premises while another made a second attempt to obtain a search warrant for the house.

This time the agent went to a state court judge. The affidavit for the search warrant stated that the purpose for its issuance was to discover and seize evidence to support the charge of possession of marijuana. The affidavit mentioned neither the denial of the request for a search warrant on the day before nor any purpose or intent to search for evidence of the cocaine conspiracy. The April 3 affidavit stated simply that Rettig had attempted to dispose of the marijuana when an arrest warrant was executed and gave the details of that incident. The affidavit then continued:

Your affiant has been trained in the identity (sic) and recognition of marijuana substances at the National Training Institute in Washington, D. C., and has observed marijuana during the course of his employment approximately 50 times. Your affiant knows through his training and experience that commonly persons who have possession of marijuana will have other quantities secreted in various locations in their residence. Your affiant also knows from his training that persons who possess marijuana often have paraphernalia for the use of marijuana, such as cigarette rolling machines, papers, wax paper, plastic bags, scales, and measuring devices. Your affiant also knows that persons in possession of a residence will normally have indicia of their identity located within said residence including, but not limited to, cancelled mail, keys, rent receipts, deeds, leases, bills, passport and photographs.

Based upon the information contained in this affidavit the state judge issued a search warrant. It described the Morro Bay residence and appurtenant structures and further described the following personal property as subject to seizure Marijuana and marijuana substances, paraphernalia for the use of marijuana, such as cigarette rolling machines, papers, wax paper, plastic bags, scales and measuring devices. Indicia of the identity of the residents of said house including, but not limited to, cancelled mail, keys, rent receipts, utility bills, deeds, leases and photographs.

Immediately after the search warrant was issued, an agent returned with it to the house where other agents were waiting. Five or six agents then conducted an extensive search. The agents' estimate of the duration of the search varied from one hour to five and one-half hours. Documents and papers throughout the house were examined, ostensibly to discover indicia of the residents' identity for the purpose set forth in the warrant. The Government stipulated to a complete inventory of the material taken, which lists some 2,288 items. The vast majority of the items listed are written material. While the list is too extensive for a detailed description here, the breadth of the search that took place can be understood by noting that the items seized included numerous United States government publications, blank applications for various credit cards, bank brochures, medical and dental records, drug store receipts for a period extending over two years prior to the search, photograph slides, undeveloped film, extensive financial records, credit cards, and travel documents. Also seized were a black leather case containing approximately four pounds of white powder, a triple beam balance scale, and several wine bottles.

We think that in the hands of these agents the warrant issued on April 3 was used as an instrument for conducting the search for which permission had been denied on the previous day, a search that pertained to evidence of the cocaine charge, not to the possession of marijuana. In contrast to the affidavit filed with the state judge in support of the April 3 search warrant, the affidavit filed the day before with the federal magistrate described in detail, in four pages of single spaced text, the elaborate scheme to smuggle cocaine from Peru, including preliminary flights from California to Lima, Peru by way of New York. The affidavit revealed plans to smuggle cocaine by using hollowed out chess boards, film canisters, false bottom suitcases, and a plan to dissolve cocaine in wine bottles and recover it once it had been imported. The affidavit further recited that during the conspiracy, and at the time of the affidavit, Rettig occupied the Morro Bay residence. The search that was conducted, and the items seized, were more pertinent to these matters than to the marijuana charge, and we conclude that the search was for purposes and objects not disclosed to the magistrate.

Rettig's wife was present at the home during the search and by affidavit described the incident. Portions of her affidavit, uncontradicted in the record, are set forth in the margin. ¹ Her statements further support the inference that the agents did not confine their search to a discovery of evidence relating to the marijuana charge and of the identity of the occupants of the house, but that instead they searched for evidence of the far more extensive criminal enterprise to smuggle cocaine.

The failure of the agents to advise the state judge on April 3 of the unsuccessful attempt made the day before to obtain a search warrant for evidence of the cocaine conspiracy and of their continued purpose to discover evidence of this complicated scheme would not necessarily invalidate the search warrant or proscribe a search and incident seizures confined to the terms of the warrant. The case before us is to be distinguished from those in which the defendant seeks to attack the factual accuracy of the underlying affidavits in order to establish a warrant's improper issuance. See Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), and cases cited therein. Where factual inaccuracy of the affidavit is alleged, a warrant is invalidated only if it is established that the affiant was guilty of deliberate falsehood or reckless disregard for the truth, and if, with the affidavit's false material set to one side, the information remaining in the affidavit is inadequate to support probable cause. Id. 438 U.S. at 156, 171, 98 S.Ct. 2677, 2685. The April 3 warrant was validly...