U.S. v. Traylor

• Decision Date: 21 September 1981
• Docket Number: Nos. 80-1616,80-1617,s. 80-1616
• Citation: 656 F.2d 1326
• Parties: 9 Fed. R. Evid. Serv. 219 UNITED STATES of America, Plaintiff-Appellee, v. Wayne Franklin TRAYLOR, Ardis May Traylor, and John Horace Andrews, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1326

656 F.2d 1326

9 Fed. R. Evid. Serv. 219

UNITED STATES of America, Plaintiff-Appellee, v. Wayne Franklin TRAYLOR, Ardis May Traylor, and John Horace Andrews, Defendants-Appellants.

Nos. 80-1616, 80-1617.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 4, 1981.

Decided Sept. 21, 1981.

John W. Wolfe, John Henry Browne, Seattle, Wash., for defendants-appellants.

Francis J. Diskin, Asst. U. S. Atty., Seattle, Wash., argued, for plaintiff-appellee; Stanley D. Tabor, Asst. U. S. Atty., Seattle, Wash., on brief.

Appeal from the United States District Court for the Western District of Washington.

Before WRIGHT and ANDERSON, Circuit Judges, and TAYLOR, ^* District Judge.

J. BLAINE ANDERSON, Circuit Judge:

I. OVERVIEW

On March 8, 1980, Drug Enforcement Administration (DEA) agents found approximately 9 pounds of cocaine in handbags carried by Wayne and Ardis Traylor. The cocaine was found during a search of the Traylors' luggage upon their arrival at the Seattle-Tacoma Airport from Los Angeles.

As a result of the arrest of the Traylors, the government apparently became aware of a connection between the Traylors and John Andrews, the appellants, and others. The government's subsequent investigation led to an indictment which charged that the appellants, along with others, had engaged in a conspiracy to import cocaine and a conspiracy to possess and distribute cocaine. The conspiracies were alleged to have commenced from at least the early part of 1978 and continued through March 8, 1980.

In addition to the conspiracy charges, the appellants were indicted on two counts each of the substantive offenses of importing cocaine and possessing cocaine with the intent to distribute. ¹ These charges arose out of the March 8, 1980 incident and a December 1978 incident.

The key government witnesses were Cathy McCausland, a friend of Wayne Traylor, and Steve Gable, a friend of Andrews who had been arrested and convicted in California in 1978 after he had attempted to smuggle cocaine into the country. It was essentially through their testimony that the government established the conspiracies between the Traylors and Andrews.

On appeal, appellants raise several assignments of error concerning the search and seizure of the cocaine on March 8, 1980, the admissibility of certain testimony and the sufficiency of evidence. We will consider each issue separately and set forth additional facts accordingly.

II. DISCUSSION

A. Search and Seizure

At trial, appellants moved to suppress the cocaine and other items seized by the DEA agents during their search of the luggage and bags of the Traylors on March 8, 1980. The district court denied the motions. The court held that the affidavit submitted by the DEA agent to the magistrate had established probable cause for the issuance of the search warrant; that the luggage and handbags of the Traylors had been properly searched pursuant to the search warrant; that the search of the handbags was proper as searches incident to the arrest of the Traylors; and that Wayne Traylor had voluntarily consented to the search of his luggage and handbag.

We affirm the district court's ruling on the basis that the search warrant was properly issued and the search of the handbags was within the scope of the warrant. Therefore, we do not consider the other bases for the court's decision.

1. Issuance of the Search Warrant

In evaluating the sufficiency of an affidavit for a search warrant, a magistrate need only conclude that criminal activity is probably shown. United States v. Fried, 576 F.2d 787, 790 (9th Cir.), cert. denied, 439 U.S. 895, 99 S.Ct. 255, 58 L.Ed.2d 241 (1978). Where the affidavit is based, at least in part, on hearsay declarations of an informant, the affidavit must provide facts showing the reliability of the information and indicating the informant's credibility. Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723 (1964). But, at all times, the affidavit must be read as a whole and given a common sense and realistic interpretation. A magistrate's conclusions will be accorded "great deference." United States v. Fried, 576 F.2d at 790-791.

The affidavit submitted by the DEA agent contained, among other things, information received from a confidential informant. The informant's report was that:

1. Wayne Traylor, John Andrews and Jon Hornback were involved in the trafficking, distribution and the use of cocaine;

2. Wayne and Ardis Traylor had gone to Florida and had brought back "multi-pound quantities" of cocaine;

3. He had seen Wayne Traylor use cocaine in his coffee and had seen him give some of the cocaine to a young woman;

4. Andrews had sold his interest in a tavern and had received $200,000, and had stated that he would be investing it in Traylor's sawmill, but the money was never invested there;

5. The Traylors had not been at their Monroe, Washington home for four weeks;

6. Wayne Traylor had stated that he was going to California for a back operation.

The affidavit further related that:

1. The affiant had run a computer check of Hornback and Andrews which showed that they were suspected by the DEA of being cocaine traffickers.

2. A check by another agent of the DEA of the records of the American Princess Lines showed that the Traylors, along with their granddaughter, had boarded a Princess Cruise ship on February 23, 1980;

3. The cruise ship had made a stop at Cartegena, Colombia, which is known as a major source area of cocaine;

4. A DEA agent talked to crew members of the ship who stated that the Traylors had disembarked for several hours in Cartegena;

5. DEA agents learned that the Traylors were flying from San Juan, Puerto Rico to Los Angeles en route to the Sea-Tac Airport;

6. On their arrival in Los Angeles, a Los Angeles Police Department narcotics dog, Frog, "examined" by smell the luggage of the Traylors. The luggage was identifiable by labels;

7. The dog "alerted" on three of the six pieces of luggage of the Traylors;

8. The dog was certified by the Los Angeles Police Department for the detection of heroin, cocaine and marijuana. The dog had alerted on 705 narcotic training aids which had actually contained drugs, had been responsible for in excess of 50 seizures, and two weeks previous had alerted on all the bags in a seizure of 35 pounds of cocaine.

After reviewing the affidavit, we determine that the informant's report could have been accorded little or no weight. There were no facts in the affidavit to demonstrate that the informant was credible or that his information was reliable. The informant's report was somewhat corroborated by other information in the affidavit; however, we believe that such corroboration did little to give credence to the informant's report.

Nevertheless, we conclude that the search warrant was properly issued as the information provided by the DEA's investigation and the narcotics detection dog's scent examination, even without the informant's report, was sufficient to support a finding of probable cause. The DEA's own investigation showed that the Traylors, along with their granddaughter, had gone on a cruise and had entered and disembarked at a foreign port, Cartegena, Columbia, which was known as a major source area for cocaine. Thus this investigation indicated that there was at least the opportunity for the Traylors to obtain cocaine. Of course, this information alone would not have been sufficient to justify the issuance of the search warrant. However, the affidavit also detailed the scent examination of the Traylor's luggage which was conducted by the narcotics detection dog. With the dog's training record, as well as the dog's past performance record being presented, the magistrate could properly evaluate the reliability of the dog's reactions. We believe this information, along with the DEA's investigation, established probable cause for the issuance of the search warrant. See United States v. Sullivan, 625 F.2d 9, 13 (4th Cir. 1980), cert. denied, --- U.S. ----, 101 S.Ct. 1374, 67 L.Ed.2d 352 (1981).

2. Scope of the Warrant

While we have determined that the search warrant was properly issued, appellants also question whether the search of their handbags was within the scope of the warrant. ² We conclude that the search was proper.

The search warrant authorized the search of,

"the baggage and bags belonging to and in the care, custody and control of Wayne Franklin Traylor, Ardis May Traylor, and Roxie Traylor; as well as on their persons at Seattle-Tacoma International Airport, which bags are described as a yellow vinyl bag with Delta Tag Number 90-67-41...."

Five other pieces of luggage were described with the same specificity. However, the handbags in question were not specifically mentioned.

Appellants argue that the specific description of the bags should be deemed to have limited the permissible scope of the search warrant to the specifically described bags. While we acknowledge that the wording of the search warrant is not as clear as it could be, we cannot agree with appellant's reading of the warrant.

Search warrants, as well as underlying affidavits, must be read in a "common sense and realistic fashion." See United States v. Federbush, 625 F.2d 246, 251 (9th Cir. 1980). The general language of the search warrant "the baggage and bags belonging to and in the care, custody and control of" encompassed articles such as the handbags carried by the Traylors. While the specific descriptions might be viewed as narrowing the scope of the search warrant, to so construe the search warrant would be reading it in a "hypertechnical" manner. See, Id., at 251. We believe that the search warrant was appropriately interpreted as authorizing the search of the Traylors' handbags. Therefore, the seizure of the cocaine on March 8, 1980, was valid and the motion to suppress was properly denied.

B. Hearsay Confrontation

Appellants Wayne Traylor and Andrews...