U.S. v. Rich, 91-10343
| Citation | 26 F.3d 135 |
| Decision Date | 03 June 1994 |
| Docket Number | No. 91-10343,91-10343 |
| Parties | NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff-Appellee, v. David William RICH, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Before: WALLACE, GARTH, * and WIGGINS, Circuit Judges.
Appellant David Rich appeals his conviction and sentence for his involvement in a methamphetamine-production conspiracy. We have jurisdiction under 28 U.S.C. Sec. 1291 and affirm the district court.
Rich went to trial with codefendant Cindy Brees. On the fifth day of trial, Cindy Brees pleaded guilty. Rich moved for a mistrial, claiming that evidence in the trial had been admissible only against Cindy Brees. The district court denied the motion, holding that only one piece of evidence would not have been admissible against Rich and that the admission could be remedied by a limiting instruction, which it issued.
Appellant argues that the district court erred by refusing to declare a mistrial after the change of plea by Cindy Brees, that he was severely prejudiced by her mid-trial change of plea, and that the court's curative instruction was insufficient to cure the prejudice. We review the district court's decision to deny a motion for mistrial for an abuse of discretion. United States v. Homick, 964 F.2d 899, 906 (9th Cir.1992).
We find no support for the proposition that the withdrawal of a codefendant cannot be cured by appropriate instructions. The out-of-circuit cases upon which Appellant relies do not stand for that proposition. In fact, one of those cases straightforwardly states that "[a] cautionary instruction is generally sufficient to dispel any prejudice that arises from informing the jury of a codefendant's plea of guilty." United States v. DeLucca, 630 F.2d 294, 298 (5th Cir.1980), cert. denied, 450 U.S. 983 (1981). In this circuit, informing a jury of the actual plea of a codefendant is not error where the statement is accurate and unadorned, and the jury is carefully instructed not to consider the plea. United States v. Miroyan, 577 F.2d 489, 494 (9th Cir.), cert. denied sub nom., McGinnis v. United States, 439 U.S. 896 (1978); United States v. Washabaugh, 442 F.2d 1127, 1129 (9th Cir.1971). An instruction such as that given by the district court in this case, which did not actually divulge the plea, is even better. Washabaugh, 442 F.2d at 1129.
Any possible prejudice has been properly cured by the instructions to the jury. The district court did not abuse its discretion in refusing to declare a mistrial.
The district court ruled, in response to Appellant's motion to suppress, that evidence derived from the search of Rich's person was admissible because Rich was named in the warrant as an individual to be searched, and because the search was incident to a valid arrest. The district court also found that the evidence obtained from the suitcase in the bed of the truck driven by Rich was admissible as the product of a search, supported by independent probable cause, of a container in an automobile.
Generally, motions to suppress are reviewed de novo. United States v. Khan, 993 F.2d 1368, 1375 (9th Cir.), amended, 93 Daily Journal D.A.R. 5927 (1993); Homick, 964 F.2d at 902; United States v. Thomas, 863 F.2d 622, 625 (9th Cir.1988). The trial court's factual findings are reviewed for clear error. United States v. Negrete-Gonzales, 966 F.2d 1277, 1282 (9th Cir.1992). The determination of probable cause is a mixed question of law and fact in which the legal issues predominate and is therefore subject to de novo review. United States v. Dunn, 946 F.2d 615, 618 (9th Cir.) (warrantless search of vehicle), cert. denied, 112 S.Ct. 401 (1991); United States v. Smith, 790 F.2d 789, 791 (9th Cir.1986) (); see also United States v. Linn, 880 F.2d 209, 214 (9th Cir.1989) ().
The search warrant included Rich's person and his vehicle, an orange Scout, among the places to be searched. The informant provided information that Rich used this vehicle to deliver supplies to the laboratory. Rich drove a different truck up to the search in progress at Spence's house, approximately two miles from the lab, after the lab site had already been searched. He was arrested after he inquired about Spence's presence and was asked his name.
Appellant first argues that the evidence derived from the search of his person should have been suppressed. We must determine whether that evidence was obtained by a search pursuant to either a valid search warrant or a legal arrest. Appellant cites Illinois v. Gates, 462 U.S. 213 (1983), for the test of a valid search warrant affidavit, concluding (correctly) that the "veracity" and "basis of knowledge" of the informant, though no longer rigidly required, are still to be weighed when deciding whether there is a fair probability of finding evidence or contraband in a particular place. Appellant relies, however, primarily on pre-Gates cases to argue that there was no probable cause solely because the tip was not properly corroborated. See United States v. Larkin, 510 F.2d 13 (9th Cir.1974); United States v. Rasor, 599 F.2d 1330 (5th Cir.1979); Acosta v. Beto, 297 F.Supp. 89 (S.D.Tex.1969), aff'd sub nom., Gonzalez v. Beto, 425 F.2d 963 (5th Cir.), cert. denied, 400 U.S. 928 (1970), and cert. denied, 400 U.S. 1001 (1971). One post-Gates case, United States v. Delgadillo-Velasquez, 856 F.2d 1292, 1297 (9th Cir.1988), has held that an anonymous tip that neither identified a specific transaction nor was corroborated by any significant independent investigation was insufficient by itself to establish probable cause. That case is, however, easily distinguishable from the case at hand, where a known informant told of specific past and future activities and the information was corroborated by independent investigation, including locating a dump for freon cannisters described by the informant. We conclude that the search warrant was supported by probable cause.
Even if the search warrant were not valid, the search could have been conducted pursuant to a valid arrest. Rich's arrest occurred after the search of the laboratory site at the mine. That search produced all the equipment and chemicals necessary to manufacture methamphetamine. Rich was arrested by officers in the course of the search of Spence's house. That search had turned up the keys to the padlock at the mine, linking the house to the laboratory. The search of Spence's house had also produced methamphetamine and the ingredients thereto. Rich's very presence in northern California was corroboration of the informant's statements that the conspiracy was gearing up to produce more drugs. We conclude that the facts and circumstances within the knowledge of the officers involved in the investigation, and the reasonable inferences that may be drawn therefrom, were "sufficient to warrant a prudent person to believe that a suspect has committed, is committing, or is about to commit a crime." United States v. Hoyos, 892 F.2d 1387, 1392 (9th Cir.1989), cert. denied, 498 U.S. 325 (1990). There was, therefore, probable cause to arrest Rich, and the search of his person was pursuant to a valid arrest.
The evidence derived from the search of the containers in the truck bed is likewise admissible. Appellant argues that the results of the search of the truck should be excluded because there was no warrant for the search of that particular truck and the government has not met the burden of showing an exception to the warrant requirement. The "simple innocent act of pulling into a driveway during the execution of a search warrant," Appellant contends, was insufficient to subject him to a warrantless search.
Police may validly search, without a warrant, a container found in a car whenever there is probable cause to believe that it contains contraband. California v. Acevedo, 500 U.S. 565, ----, 111 S.Ct. 1982, 1991 (1991). The information in the hands of law enforcement indicated that Rich had come to northern California to manufacture methamphetamines and that the vehicle he was in was being used to transport chemicals for such activities. At the time of the search, the existence of the lab had been confirmed and it was believed, on information that was known to be otherwise accurate, that Rich customarily delivered chemicals to the lab before production began, and that production was about to begin again. Rich's appearance at Spence's house on that day was not "innocent," as he argues, but, given information known to the officers, was in fact a clear reason to believe that the vehicle was transporting contraband. The evidence obtained from even a warrantless search of the containers in the vehicle is, therefore, admissible under the probable cause exception of Acevedo.
The district court did not err in admitting the evidence obtained from the search of Rich and the truck. It was correct in its determination that, even absent the warrant, such evidence could be admitted as the result either of a search incident to a valid arrest or of a search of containers that the police have probable cause to believe contain contraband.
Appellant argues that his right to due process has been violated by the government's failure to preserve glassware retrieved from the laboratory, and that the district court erred in failing to grant a motion to dismiss the indictment because of such destruction of evidence. The government challenges this claim on the grounds that it was not properly preserved for appeal,...
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