U.S. v. Solis

• Decision Date: 02 June 1976
• Docket Number: No. 75-1831,75-1831
• Citation: 536 F.2d 880
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. John Manuel SOLIS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 880

536 F.2d 880

UNITED STATES of America, Plaintiff-Appellant, v. John Manuel SOLIS, Defendant-Appellee.

No. 75-1831.

United States Court of Appeals Ninth Circuit.

June 2, 1976.

William Sheffield (argued), Santa Ana, Cal., for defendant-appellee.

Vincent Von der Ahe, Asst. U. S. Atty. (argued), Los Angeles, Cal., for plaintiff-appellant.

OPINION

Before SMITH, ^* TRASK and GOODWIN, Circuit Judges.

J. JOSEPH SMITH, Circuit Judge:

The United States appeals from an order, entered in May of 1975 by the District Court for the Central District of California, Harry Pregerson, Judge, 393 F.Supp. 325, granting defendant-appellee Solis' pretrial motion to suppress evidence. We find error in the grant of the suppression order and we reverse and remand.

On October 10, 1974, an informant of unproven reliability told a government drug agent that there was a white semi-trailer parked at the rear of a particular gasoline station and that the floor of the trailer contained approximately one ton of marijuana. The informant stated also that the trailer was distinguishable by its paper license plate and by white powder on the outside of its rear doors. The informant stated further that on at least seven occasions he had assisted a John Solis in the unloading of large quantities of white-powder-covered marijuana bricks from similar trailers. That same day, the drug agent proceeded to the designated gas station open to the public and found a white semi-trailer with a paper license plate and with what appeared to be white talcum powder on its rear doors. The drug agent later stated in an affidavit that, because of his training and experience, he knew that marijuana was often smuggled in semi-trailer floors and that talcum powder was commonly coated on marijuana bricks to conceal the marijuana's odor.

The drug agent relayed what he had learned to Customs. Consequently two Customs officers took specially trained marijuana sniffing dogs across property to which the public had access to the trailer. Each dog indicated that marijuana was located inside the trailer. The dogs noticed the odor of the marijuana, one from as far away as 25 yards. Each confirmed the reaction within one foot of the trailer.

On the basis of the manner in which the dogs reacted toward the trailer, a magistrate issued a search warrant for the trailer. The trailer was searched and a large amount of marijuana was found. As a result, Solis was indicted for three violations of 21 U.S.C. § 841(a)(1) involving the possession with intent to distribute and the distribution of marijuana.

Solis made a pretrial motion to suppress the use of the marijuana as evidence against him. Testimony at the hearing on the motion indicated that Blue and Baron, the retrievers used as marijuana dogs, were extremely reliable, that the dogs' sense of smell was eight times as acute as that of a person, that the trailer was completely enclosed, that its walls were approximately six inches thick, and that a person outside the trailer could not have smelled the marijuana inside it. None of these conclusions is disputed by the parties. The government conceded that prior to the use of the dogs no probable cause existed for a warrant to search the trailer.

On March 27, 1975, the district court filed a memorandum and order granting the suppression motion. The court reasoned that the warrantless detection of the marijuana by the dogs constituted an unlawful search under the fourth amendment and that the subsequent search of the trailer was therefore unlawful because the warrant authorizing it had been issued on the basis of evidence which was the fruit of the earlier illegal search. We do not agree that the use of the dogs here constituted a search but rather monitoring of the air in an area open to the public in determining the possible existence of a criminal enterprise nearby.

We agree with Judge Pregerson that the critical question is the kind of intrusion a free society is willing to tolerate. We disagree, however, with his conclusion that the intrusion here was beyond reasonable limits of toleration. Generally evidence acquired by unaided human senses from without a protected area is not considered an illegal invasion of privacy, but is usable under doctrines of plain view or open view or the equivalent. Odors so detected may furnish evidence of probable cause of "most persuasive character," Johnson v. United States, 333 U.S. 10, 13, 68 S.Ct. 367, 92 L.Ed. 436 (1948), "physical fact(s) indicative of possible crime," Taylor v. United States, 286 U.S. 1, 6, 52 S.Ct. 466, 76 L.Ed. 951 (1932). See also United States v. Ventresca, 380 U.S. 102, 111, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); United States v. Pond, 523 F.2d 210 (2d Cir. 1975); United States v. Walker, 522 F.2d 194 (5th Cir. 1975); United States v. Johnston, 497 F.2d 397 (9th Cir. 1974); United States v. Martinez-Miramontes, 494 F.2d 808 (9th Cir.), cert. denied, 419 U.S. 897, 95 S.Ct. 176, 42 L.Ed.2d 141 (1974); United States v. Brown, 487 F.2d 208 (4th Cir. 1973), cert. denied, 416 U.S. 909, 94 S.Ct. 1617, 40 L.Ed.2d 114 (1974); United States v. Lewis, 392 F.2d 377 (2d Cir.), cert. denied, 393 U.S. 891, 89 S.Ct. 212, 21 L.Ed.2d 170 (1968); United States v. Gillet, 383 F.2d 843 (2d Cir. 1967).

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