U.S. v. Tate

Decision Date21 December 1982
Docket NumberNos. 81-1206,s. 81-1206
Citation694 F.2d 1217
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. to 81-1208, 81-1223 and 81-1233.
CourtU.S. Court of Appeals — Ninth Circuit

Dave Whitney, Forest Fall, Cal., for Tate.

Victor Sherman, Nasatir, Sherman & Hirsch, Los Angeles, Cal., for Reaves.

Luke McKissack, Nasatir, Sherman & Hirsch, Los Angeles, Cal., for Montgomery.

Victor Sherman, Los Angeles, Cal., for Williams.

Anthony P. Capozzi, Robert A. Giovacchini, Fresno, Cal., for Sweeney.

Brian Leighton, Asst. U.S. Atty., Fresno, Cal., for the U.S.

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

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

POOLE, Circuit Judge.

Appellants appeal from their convictions for possession with intent to distribute phencyclidine (PCP), 21 U.S.C. Sec. 841(a)(1), and attempt to manufacture PCP, 21 U.S.C. Sec. 846. The charges resulted from an investigation on July 12 and 13, 1980, by officers of the Tulare County Sheriff's Department.

On July 12, 1980, Officer Larry McLaughlin received an anonymous telephone call. As a result of this call, a search warrant for the premises at 5580 Avenue 320 was applied for. 1 McLaughlin's supporting affidavit averred that the anonymous telephone caller stated (1) he had observed three or four black males "utilizing" a white Dodge van at a residence at 5580 Avenue 320, (2) that he could smell "a very strong odor such as ether coming from said residence and/or premises," (3) that the informant was familiar with the odor of ether having used it "continuously on numerous occasions for the purpose of starting engines"; the caller gave directions to the Avenue 320 residence. The affidavit also stated that McLaughlin and another officer went "to the immediate area of said residence and smelled a very strong odor of ether coming from said residence," and that the process of manufacturing PCP "emits a strong odor of ether."

While waiting for the magistrate to act upon the application for search warrant, Agent Miller of the California Bureau of Narcotics Enforcement, set up a surveillance of the Avenue 320 residence. At 3:30 a.m. on July 13, 1980, he walked by the residence and smelled cyclohexanone, a necessary precursor for the manufacture of PCP. At 5:08 a.m., a station wagon approached a shed on the premises. Agent Miller noted three to five black males walking about the station wagon and the shed. Some were carrying packages and objects and some were wearing rubber gloves. At 5:45 a.m. they closed and locked the door of the shed, entered the station wagon and departed the area. Agent Miller followed the station wagon. He learned that the applied-for search warrant had been signed, continued to follow the station wagon, and ultimately stopped it about five miles from the Avenue 320 residence. The passengers were ordered out of the vehicle, at which time Miller noted a strong odor of ether and observed a whitish powder on each of the defendants. Defendants were then arrested. A search of their persons disclosed two keys to rooms at the Holiday Inn in Visalia.

The premises at Avenue 320 were searched and investigators found PCP and evidence that the substance was being manufactured there.

Investigators went to the Visalia Holiday Inn and searched the parking lot for the white van described by the unknown informant. They discovered a white Ford van in which they observed a triple beam scale, a number of containers similar to containers found at the residence, and a package apparently containing rubber gloves. A search warrant for the van was obtained. The search of the van disclosed clothing owned by some of the defendants, chemical precursors to PCP, and a quantity of finished PCP.

Appellants' motions to suppress the evidence found at each search was denied, and they were convicted on stipulated facts. This appeal followed.

I. The search of the Avenue 320 residence

The fourth amendment proscribes unreasonable searches and seizures, and items seized in searches illegal under the fourth amendment may not be used as evidence against the victims of the search. See Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 2412, 57 L.Ed.2d 290 (1978); Wong Sun v. United States, 371 U.S. 471, 484, 83 S.Ct. 407, 415, 9 L.Ed.2d 441 (1963). It is a cardinal principle that warrantless searches "are per se unreasonable under the Fourth Amendment--subject only to a few specifically established and well-delineated exceptions." Mincey v. Arizona, 437 U.S. at 390, 98 S.Ct. at 2412. To comply with constitutional standards, a search warrant must be supported by an affidavit establishing probable cause to search. See United States v. Traylor, 656 F.2d 1326, 1329-30 (9th Cir.1981); United States v. Armstrong, 654 F.2d 1328, 1335 (9th Cir.1981), cert. denied, 454 U.S. 1157, 102 S.Ct. 1032, 71 L.Ed.2d 315 and 455 U.S. 926, 102 S.Ct. 1289, 71 L.Ed.2d 470 (1982).

The substance of McLaughlin's affidavit in support of the search warrant for the Avenue 320 residence is set forth in the margin. 2 Appellants argue that the evidence seized at the residence must be suppressed because the search warrant was not supported by probable cause. They first argue that the warrant is insufficient because it fails to state the underlying circumstances demonstrating the anonymous informant's reliability. Appellants also contend that the odor of an non-contraband substance in the vicinity of a residence, absent other corroborating evidence of criminal activity, does not establish probable cause to search. Finally, appellants argue that the affidavit contained material misstatements and that under California law further proceedings are required.

A. Reliability of the informant's evidence

An affidavit based at least in part on the tip of an unnamed informer must satisfy two requirements. First, it must disclose some underlying circumstances on which the informant relied. Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1513, 12 L.Ed.2d 723 (1964); see United States v. Davis, 663 F.2d 824, 828 (9th Cir.1981); United States v. Lefkowitz, 618 F.2d 1313 (9th Cir.), cert. denied, 449 U.S. 824, 101 S.Ct. 86, 66 L.Ed.2d 27 (1980); United States v. Garrett, 565 F.2d 1065, 1070 (9th Cir.1977), cert. denied, 435 U.S. 974, 98 S.Ct. 1620, 56 L.Ed.2d 67 (1978). Second, the affidavit must present facts enabling the magistrate to conclude that the informant is credible and his information reliable. Aguilar v. Texas, 378 U.S. at 114, 84 S.Ct. at 1513; United States v. Traylor, 656 F.2d at 1330. See United States v. Davis, 663 F.2d at 828.

We find both requirements to be satisfied here. The informer's statement, as reported in the affidavit, that he smelled an odor "such as ether," and that he was familiar with the smell of ether, demonstrates that the caller was relating his own observations, thus satisfying the first prong of the test. See United States v. Garrett, 565 F.2d at 1070. Because the informant was unknown to the investigators, no direct evidence of his credibility and reliability was possible. However, under Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), independent corroboration of the tip may satisfy this requirement. The unknown informer's statement that a strong odor of ether emanated from the premises was corroborated by McLaughlin's averment that he and another officer also smelled a strong odor of ether coming from the Avenue 320 residence. See United States v. Garrett, 565 F.2d at 1070.

B. Existence of probable cause

The more difficult question is whether the facts presented in the affidavit are sufficient to establish probable cause. In order to find that an affidavit is sufficient to support a search warrant, a magistrate must only conclude that criminal activity is probably shown. United States v. Traylor, 656 F.2d at 1330; United States v. Armstrong, 654 F.2d at 1335. In reviewing the validity of a search warrant, a court is limited to the information and circumstances available to the magistrate at the time the warrant is issued. J.R. Simplot Co. v. Occupational Safety & Health Administration, 640 F.2d 1134, 1138 (9th Cir.1981), cert. denied, 455 U.S. 939, 102 S.Ct. 1430, 71 L.Ed.2d 649 (1982); United States v. Brown, 455 F.2d 1201, 1204 (9th Cir.), cert. denied, 406 U.S. 960, 92 S.Ct. 2069, 32 L.Ed.2d 347 (1972). The magistrate's decision is to be accorded great deference. United States v. Traylor, 656 F.2d at 1330; United States v. Armstrong, 654 F.2d at 1335.

The unknown informant did not state that the illegal manufacture of PCP, or any other illicit activity, was taking place at the Avenue 320 residence. The sole facts presented in the affidavit suggesting criminal activity at the residence were (1) the premises emitted a strong odor of ether, and (2) the process of manufacturing PCP emits a strong odor of ether. 3 Appellants contend that the smell of a noncontraband substance having a number of legitimate uses, standing alone does not establish probable cause to search a residence. We agree. Ether has many innocuous uses. It is a very common solvent, and is also used to start engines. While the strong smell of ether may be a factor in establishing probable cause, the government cites no case, and we have found none, holding that the smell of ether, without more, establishes probable cause to search.

Nor does Johnson v. United States, relied upon by both the government and appellants, authorize a contrary holding. 333 U.S. 10, 68 S.Ct. 367, ...

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