U.S. v. Tate, s. 81-1206

Decision Date04 August 1986
Docket Number81-1223 and 86-1233,81-1207,Nos. 81-1206,86-1208,s. 81-1206
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Charles TATE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Ezeal REAVES, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Roosevelt MONTGOMERY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Johnny V. WILLIAMS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Norman SWEENEY, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Brian Leighton, Asst. U.S. Atty., Fresno, Cal., for plaintiff-appellee.

Dave Whitney, Forest Falls, Cal., Victor Sherman, Luke McKissack, Nasatir, Sherman & Hirsch, Victor Sherman, Los Angeles, Cal., Anthony Capozzi, Robert A. Giovacchini, Fresno, Cal., for defendants-appellants.

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

Before SKOPIL and POOLE, Circuit Judges, and ENRIGHT, * District Judge.

ENRIGHT, District Judge:

The opinion in this case was originally filed on December 21, 1981. United States v. Tate, 694 F.2d 1217 (9th Cir.1982), vacated 468 U.S. ----, 104 S.Ct. 3575, 82 L.Ed.2d 873 (1984). In a split decision, 1 this court reversed the defendants' convictions, holding that evidence introduced at trial had been seized under warrants issued on an insufficient showing of probable cause, in violation of the fourth amendment. In addition, a subsequent vehicle stop and warrantless arrest, and a later search under a separate warrant, were held invalid under the fourth amendment. The United States petitioned for a writ of certiorari before the United States Supreme Court.

On July 5, 1984, while the government's petition in this case was still pending, the Supreme Court decided United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). In Leon, the Court held that evidence seized under an invalid warrant could be admitted if the officers executing the warrant acted in objectively reasonable reliance on it. Leon, therefore, established the good faith exception to the fourth amendment exclusionary rule.

The Court also on July 5, 1984, vacated this court's judgment in Tate, 468 U.S. 1206, 104 S.Ct. 3575, 82 L.Ed.2d 873 (1984), and remanded the cause for further consideration in light of Leon.

Upon careful consideration, we now hold that Leon does apply to this case, and that the officers executing the search warrants were acting in objectively reasonable reliance on them. Thus, in these limited circumstances, the fourth amendment exclusionary rule does not require suppression of the evidence seized, and the defendants' convictions must be affirmed.

I.

The facts in this case were recited in detail in this court's earlier opinion. Tate, 694 F.2d at 1219. They can be summarized as follows: On July 12, 1980, Officer Larry McLaughlin received an anonymous call. The caller stated that (1) three or four men were "utilizing" a white Dodge van at a residence at 5580 Avenue 320, 2 (2) there was a strong odor of ether coming from the residence, and (3) the caller was familiar with the odor of ether. Officer McLaughlin and another officer went to the residence and corroborated the strong odor of ether. The officers knew that ether was frequently used to manufacture phencyclidine (PCP). The caller's information At 3:30 a.m. on July 13, 1980, Agent Miller of the California Bureau of Narcotics Enforcement went to the residence. He smelled cyclohexanone, a necessary precursor for PCP. Agent Miller continued his surveillance of the residence, and at 5:08 a.m., he observed a station wagon approach an adjacent shed. Four or five men began to move parcels from the shed to the station wagon; the men were all wearing rubber gloves. At 5:45 a.m., the men left the residence in the station wagon, and Agent Miller followed them.

and the officers' corroboration were placed in an affidavit 3 and presented to a magistrate in an application for a search warrant.

En route, Agent Miller learned that the search warrant for the residence had been signed by the magistrate. Based on this information and his own surveillance, Agent Miller stopped the station wagon. He detected a strong odor of ether and noticed white powder on the defendants. Agent Miller arrested the five defendants and searched them. Keys to two rooms at a local Holiday Inn were found during the search.

Meanwhile, investigators searched the residence. They found PCP and equipment for its manufacture. The investigators also went to the Holiday Inn, where they observed a white Ford van in the parking lot. A triple beam scale, containers and a package apparently containing rubber gloves were visible inside the van. Consequently, the investigators obtained a search warrant for the van. The search of the van yielded two pounds of PCP and some chemical precursors for its manufacture.

The defendants filed motions in the district court to suppress the evidence seized in each of the searches. The district court denied their motions and the defendants were convicted on stipulated facts for possession with intent to distribute PCP, in violation of 21 U.S.C. Sec. 841(a)(1), and for attempt to manufacture PCP, in violation of 21 U.S.C. Sec. 846.

This court's earlier opinion, reversing the convictions, held that the affidavit supporting the search warrant for the residence was insufficient to establish probable cause. Specifically, the majority concluded that "the smell of a noncontraband substance having a number of legitimate uses, standing alone does not establish probable cause to search a residence." Tate, 694 F.2d at 1221. The majority further held that Agent Miller's stop of the station wagon was not based on reasonable suspicion of criminal activity and, finally, that the search warrant for the white van was invalid "because absent the inadmissible evidence from the illegal search of the Avenue 320 residence and the automobile stop, there is no probable cause to support the search of the van." Tate, 694 F.2d at 1224.

II.

In Leon, the Supreme Court concluded that the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion.

104 S.Ct. at 3421. Thus, all evidence obtained through an officer's reasonable reliance on a search warrant issued by a neutral magistrate is normally admissible. Cf. United States v. Merchant, 760 F.2d 963, 968 (9th Cir.1985) (invalidating a probation search that was staged as a subterfuge for conducting a criminal investigation). In applying Leon, the determinative is "the objectively ascertainable question whether a reasonably well-trained officer would have known that the search was illegal despite the magistrate's authorization." 4 Leon, 104 S.Ct. at 3421 n. 23.

The Court in Leon, however, recognized that suppression would remain an appropriate remedy in four situations: (1) if the affiant misled the magistrate or judge with information that the affiant knew or should have known was false, 104 S.Ct. at 3421; (2) if the magistrate wholly abandoned his judicial function, Id.; (3) if the warrant was based on an affidavit "so lacking in indicia of probable cause as to render official belief in its existence unreasonable." 104 S.Ct. at 3422, quoting Brown v. Illinois, 422 U.S. 590, 610-11, 95 S.Ct. 2254, 2265-66, 45 L.Ed.2d 416 (1975); and (4) if the warrant itself is facially deficient in particularizing the place to be searched and the things to be seized. 104 S.Ct. at 3422. Leon counsels that, under these circumstances, "the officer will have no reasonable grounds for believing that the warrant was properly issued." 104 S.Ct. at 3421.

III.
A. The Search of the Residence

The majority in this court's prior decision held that Officer McLaughlin's affidavit did not allege sufficient facts to establish probable cause to search the residence. Now, however, this court must determine whether the officers' reliance on the warrant was objectively reasonable. United States v. Hendricks, 743 F.2d 653, 654 (9th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 1362, 84 L.Ed.2d 382 (1985) (holding that Leon is applicable retroactively in this circuit). See also United States v. Sager, 743 F.2d 1261, 1265 (8th Cir.1984), cert. denied sub. nom. Harmon v. United States, --- U.S. ----, 105 S.Ct. 1196, 84 L.Ed.2d 341 (1985) (approving retroactivity in the Eighth Circuit). There are no facts suggesting that Officer McLaughlin misled the magistrate, or that the magistrate wholly abandoned his judicial function, or that the warrant was facially deficient in its particularity. Consequently, objectively reasonable reliance turns on whether the affidavit was exceptionally lacking in indicia of probable cause.

In Leon, the Court concluded:

The affidavit ..., as the opinions of the divided panel of the Court of Appeals make clear, provided evidence sufficient to create disagreement among thoughtful and competent judges as to the existence of probable cause. Under these circumstances, the officers' reliance on the magistrate's determination of probable cause was objectively reasonable, and application of the extreme sanction of exclusion is inappropriate.

104 S.Ct. at 3423. Similarly, in this case the evidence in the affidavit was sufficient to create disagreement among the judges. 5 Under such circumstances, the Supreme Court has clearly stated that exclusion of the evidence is not generally justified.

In addition, the companion case to Leon cautioned that "we refuse to rule that an officer is required to disbelieve a judge who has just advised him, by word and by action, that the warrant he possesses authorizes him to conduct the search he has requested." Massachusetts v. Sheppard, 468 U.S. 981, 104 S.Ct. 3424, 3429, 82 L.Ed.2d 737 (1984). Instead, co...

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