U.S. v. Storage Spaces Designated Nos. 8 and 49 Located at 277 East Douglas, Visalia, Cal.

• Decision Date: 03 December 1985
• Docket Number: 85-1086,Nos. 85-1085,s. 85-1085
• Citation: 777 F.2d 1363
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. STORAGE SPACES DESIGNATED NOS. "8" AND "49" LOCATED AT 277 EAST DOUGLAS, VISALIA, CALIF., Defendant, and Nescco, Inc., Real Party in Interest-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. 560 SOUTH BRIDGE STREET, VISALIA, CALIFORNIA, Defendant, and Balarama's Enterprises, Inc., Real Party in Interest-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1363

777 F.2d 1363

UNITED STATES of America, Plaintiff-Appellee, v. STORAGE SPACES DESIGNATED NOS. "8" AND "49" LOCATED AT 277

EAST DOUGLAS, VISALIA, CALIF., Defendant,

and

Nescco, Inc., Real Party in Interest-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. 560 SOUTH BRIDGE STREET, VISALIA, CALIFORNIA, Defendant, and Balarama's Enterprises, Inc., Real Party in Interest-Appellant.

Nos. 85-1085, 85-1086.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Sept. 11, 1985.

Decided Dec. 3, 1985.

Edward P. Moffatt and Ivan Abrams, Asst. U.S. Attys., Fresno, Cal., for plaintiff-appellee.

David F. Rodriquez, Isham, Macias, Lynch, Cronin & Rodriguez, and Jay W. Powell, Powell & MacGlashan, Visalia, Cal., for real party in interest-appellants.

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

Before CHOY, Senior Circuit Judge, HUG and SCHROEDER, Circuit Judges.

CHOY, Senior Circuit Judge:

Food and Drug Administration ("FDA") Inspector Anderson presented to a magistrate two identical 16-page affidavits relating information he had derived from his investigation of appellants Balarama's Enterprises, Inc. ("Balarama's") and NESCCO, INC. ("NESCCO"). The magistrate issued two search warrants, one for Balarama's' main office at 650 South Bridge St., Visalia, California, and the other for NESCCO's leased storage spaces, numbers 8 and 49, at 727 East Douglas, Visalia, California.

Both warrants designated the same fifteen items to be seized, including fourteen different allegedly misbranded drugs, each having a different commercial name. The fifteenth item was a catchall provision seeking all other drugs, labeling for drugs, paperwork relating to drugs (orders, records, checks and correspondence), and other articles evidencing violations of 21 U.S.C. Sec. 331(a) & (k). This statute, in general, prohibits the misbranding of drugs that have been or will be in interstate commerce. ¹

The search warrants were executed and a substantial quantity of drug material and documents was seized. Appellants jointly filed a motion for return of property and suppression of evidence, contending that there was no probable cause to support the warrants and that item 15 of the warrants was overbroad. Stating that the request for suppression was premature because no criminal proceedings were pending against appellants, the district court rejected appellants' motion for return of property by upholding the validity of the search warrants. Both appellants timely filed a notice

of appeal from this decision and their appeals were consolidated.

ISSUES

1) Is the district court's denial of appellants' motion for return of property and suppression appealable?

2) Was there probable cause to support the issuance of the two search warrants?

3) Did the search warrants describe the items to be seized with sufficient particularity?

1) Appealability of Denial of Motion for Return of Property and Suppression

We must first consider the jurisdictional question of whether the district court's order denying appellants' motion is a final decision. ²

In DiBella v. United States, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962), the Supreme Court declared that a denial of motion to suppress is appealable "[o]nly if the motion is solely for return of property and is in no way tied to a criminal prosecution in esse against the movant." Id. at 131-32, 82 S.Ct. at 660. The Supreme Court identified those instances when an order granting or denying a motion for suppression of evidence is interlocutory:

When at the time of ruling there is outstanding a complaint, or a detention or release on bail following arrest, or an arraignment, information, or indictment--in each such case the order on a suppression motion must be treated as "but a step in the criminal case preliminary to the trial thereof." Cogen v. United States, 278 U.S. 221, 227, 49 S.Ct. 118, 120, 73 L.Ed. 275.

Di Bella, 369 U.S. at 131, 82 S.Ct. at 660.

In interpreting the DiBella rule, this court has been consistent in its treatment of appeals seeking review of orders granting or denying motions that seek the return of property: if there is a criminal proceeding pending, this court lacks jurisdiction because the order is interlocutory, United States v. Woodson, 490 F.2d 1282, 1283 (9th Cir.1973); Meier v. Keller, 521 F.2d 548, 556 (9th Cir.1975), cert. denied, 424 U.S. 943, 96 S.Ct. 1410, 47 L.Ed.2d 348 (1976); if there is no criminal prosecution pending against the movant, the order on the motion for the return of property is final and, hence, appealable. VonderAhe v. Howland, 508 F.2d 364, 368 (9th Cir.1974); Goodman v. United States, 369 F.2d 166, 168 (9th Cir.1966). Although the discussion in Woodson and Meier appears to place some stress on the fact that the motion sought suppression as well as return of property, in both cases, a criminal action was pending. The VonderAhe opinion makes it plain that it is the pendency of the criminal action that is the determining factor, not the form of the motion, which is in accord with the earlier Goodman opinion. This is also in accord with the Supreme Court's statement in United States v. Ryan, 402 U.S. 530, 533, 91 S.Ct. 1580, 1582, 29 L.Ed.2d 85 (1971). There, the Court, in reference to DiBella, stated:

We have thus indicated that review is available immediately of a denial of a motion for the return of seized property, where there is no criminal prosecution pending against the movant.

Here, there is no criminal proceeding pending. In fact, the district court noted that because no criminal proceedings were in esse, it would not consider appellants' motion as one to suppress. As such, the district court was confronted solely with a motion for the return of property. As there was no criminal prosecution pending, we have jurisdiction to review the district court's order denying appellants' motion for the return of property.

2) Probable Cause to Support Issuance of Warrants

The standard for review of a magistrate's probable cause determination is whether the magistrate "had a 'substantial basis for ... conclud[ing]' that a search would uncover evidence of wrongdoing." Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527 (1983) (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960)). There are essentially two elements involved: evidence that a crime has occurred, and evidence that the place to be searched contains evidence of that crime. See United States v. Federbush, 625 F.2d 246, 252 (9th Cir.1980). A magistrate's finding of probable cause should be given "substantial deference." United States v. Flores, 679 F.2d 173, 176 (9th Cir.1982), cert. denied, 459 U.S. 1148, 103 S.Ct. 791, 74 L.Ed.2d 996 (1983).

A) Evidence of Violations of Sec. 331(a) & (k)

Inspector Anderson's affidavit provides ample evidence that appellants had violated 21 U.S.C. Sec. 331(a) & (k). ³ In this case, there are three relevant components to such violations, each having been attacked by appellants. 1) The articles must be drugs. 21 U.S.C. Sec. 352. 2) The drugs must be misbranded; that is, they must meet one of the numerous Sec. 352 definitions of misbranded. 3) And they must be sufficiently connected to interstate commerce. 21 U.S.C. Sec. 331(a) & (k).

i) The Articles are Drugs

The term "drug" includes "articles (other than food) intended to affect the structure or any function of the body of man." 21 U.S.C. Sec. 321(g)(1)(C) (1982). ⁴ The vendor's intent is the key element in this statutory definition. Cf. National Nutritional Foods Ass'n v. Mathews, 557 F.2d 325, 333 (2d Cir.1977). This intent may be derived or inferred from labeling, promotional material, advertising, or any other relevant source. Id. at 334.

Anderson's affidavit strongly indicates that appellants promoted and intended their products to be used as cocaine substitutes. The general manager of Balarama's had admitted to Anderson in 1982 that the firm sold cocaine substitutes. In June of 1983, the State of California enjoined Balarama's from manufacturing, packaging, marketing, selling or distributing Benzocaine, Lidocaine, Tetracaine, and Procaine, anesthetic drugs often diverted to illegal use as cocaine substitutes.

Upon his arrest for possession of cocaine, William Bowes, an employee of Balarama's, was found with approximately 2000 leaflets entitled "Cocaine," each stating that the product advertised was a synthetic and was selling for 25% off the street price. The flyer contained directions for mailing an order to Balarama's.

The items seized, listed in Balarama's' catalogs and advertisements as incense, had commercial names which suggest to persons interested in using cocaine or cocaine substitutes that the items are similar to or related to cocaine. Anderson's affidavit also quoted a medical journal article noting that cocaine substitutes are often promoted as incense. Some of the products were labeled with the words "if ingested or inhaled, may cause stimulation," which suggests that the products could produce stimulation, as cocaine does. ⁵

Dr. Tocus, Chief of the Drug Abuse Staff of the FDA's Center for Drugs and Biologics for the last decade, and expert advisor to numerous federal and state governmental entities dealing with drug abuse, was quoted in Anderson's affidavit as saying that the various "incense" products distributed by Balarama's contain drug ingredients and are labeled, promoted, and distributed in a manner which suggests that they are intended by Balarama's to be used as drugs within the meaning of 21 U.S.C. Sec. 321(g)(1). ⁶

The various items of evidence strongly suggest that appellants were distributing "drugs" within the meaning of Sec. 321(g)(1)(C).

ii) The Drugs were Misbranded

A drug is misbranded under 21 U.S.C. Sec. 352(f)(1) if its label lacks adequate directions for use. The items seized contained no directions at all regarding how to...