U.S. v. Whaley, 84-3459

• Decision Date: 10 January 1986
• Docket Number: No. 84-3459,84-3459
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Walker L. WHALEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 585

779 F.2d 585

54 USLW 2418

UNITED STATES of America, Plaintiff-Appellee, v. Walker L. WHALEY, Defendant-Appellant.

No. 84-3459.

United States Court of Appeals, Eleventh Circuit.

Jan. 10, 1986.

Samuel S. Jacobson, Jacksonville, Fla., for defendant-appellee.

Ernst D. Mueller, Asst. U.S. Atty., Jacksonville, Fla., Karen Skrivseth, Washington, D.C., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before GODBOLD, Chief Judge, TJOFLAT, Circuit Judge, and SIMPSON, Senior Circuit Judge.

TJOFLAT, Circuit Judge:

This appeal presents one issue: whether a warrant to search appellant's home was based on evidence obtained in violation of the fourth amendment. The district court concluded that it was not. We agree and affirm appellant's conviction.

I.

In the fall of 1981, the Drug Enforcement Administration (DEA) established a storefront operation in Atlanta, Georgia, called Georgia Laboratory Supply, to sell chemicals and laboratory equipment for the purpose of identifying clandestine drug manufacturing laboratories. During the course of this operation, DEA agents, acting undercover, received a series of long-distance telephone calls from Jonathan Whaley, appellant's brother, who used the name "David Brown" to order laboratory supplies and chemicals that could be used in the manufacture of synthetic cocaine. Jonathan Whaley requested that these materials be delivered to an apartment house address in Jacksonville, Florida. In November 1982, as DEA agents were reviewing records of various chemical supply houses, they discovered that Jonathan Whaley, using the same address as "David Brown," had ordered additional laboratory equipment and chemicals used in the manufacture of synthetic cocaine from American Scientific Supply Company.

As a result of this discovery, the DEA assigned Agent Douglas Driver of its Jacksonville office to investigate. Using the apartment address Jonathan Whaley had given for delivery of the chemicals, Driver immediately began a surveillance and learned that the apartment was occupied by Jonathan Whaley and his girl friend, Diane Brown. In December 1982, Driver obtained the chemicals and laboratory equipment ordered by "Brown" from Georgia Laboratory Supply and arranged for a "controlled delivery" of the materials, which were packaged in boxes, by a local police detective dressed in a United Parcel Service uniform. Driver also consulted DEA chemists who told him that the chemicals ordered by Jonathan Whaley from Georgia Laboratory Supply and American Scientific Supply Company represented the essential ingredients for the manufacture of synthetic cocaine and that the chemicals were ordered in the appropriate ratio for such manufacture. ¹

Realizing that it was unlikely that a chemical laboratory could be set up in the Whaley/Brown apartment, Agent Driver continued his surveillance of the apartment. Four days after the controlled delivery, Jonathan Whaley loaded the boxes of chemicals into his car and took them to appellant's home. Several DEA agents followed the car and watched Jonathan Whaley carry the boxes into the basement of appellant's house. Agent Driver then set about finding a location from which the DEA could conduct a surveillance of the basement, where he suspected that a synthetic cocaine laboratory was being operated.

Appellant, a practicing obstetrician-gynecologist, lived in an affluent residential area. His residence was located on approximately three acres of land and was set back sixty to one hundred yards from the nearest public road. The property was bounded on the west side by the St. Johns River and on the north side by a small canal. Access to the canal from the river was blocked by a floating footbridge which was locked in place. The only persons who could unlock the footbridge and swing it out of the way were appellant and three other property owners who lived on the canal.

After a lengthy examination, Agent Driver concluded that the best view of appellant's basement would be from a location across the canal on neighboring property. Driver and other agents checked various possible locations on the neighboring land and eventually found that, by climbing down a steep wooded bank to the edge of the canal, they could obtain an unobstructed view of appellant's basement from a distance of about forty yards. From this surveillance spot they found that, if the basement lights were turned on, they could clearly monitor activity in the basement by looking through the windows. The basement door had tall windows in it, and there were large windows on each side of the door. Because none of these windows were curtained, when the basement lights were on the surveillance of the basement was described by one agent as "just like watching T.V."

After obtaining the permission of appellant's neighbor to enter the property, periodic surveillance of appellant's basement began in early January 1983. Originally the surveillance was limited to occasional evening visits by a DEA agent who lived nearby. This agent observed no activity in the basement until February 10, 1983, when he noticed that the boxes of chemicals had been unpacked and that a laboratory had been set up. From that night until April 7, 1983, an agent would check the basement laboratory each night to see if the lights were on, ² and, if they were, one or more agents and sometimes local police officers would observe the activity taking place. Although such activity could be seen with the naked eye, the agents frequently used binoculars to aid their observation.

At various times during the surveillance, Jonathan Whaley, Walker Whaley, and Diane Brown were seen in the laboratory. The two brothers were seen working with the chemicals and laboratory equipment on many occasions. DEA chemists were informed about the activities observed in appellant's basement, and these chemists told the agents that the activities were consistent, in part, with the various steps in the manufacture of cocaine. ³

On April 6, 1983, Agent Driver obtained a search warrant for appellant's basement. ⁴ The search was executed the following night. In the laboratory, DEA agents seized notes and formulas for the synthesis of cocaine and all the chemicals and equipment necessary to complete the process. Residue in the laboratory equipment proved to be the products of two intermediate stages of the eight-stage process for synthesizing cocaine.

Appellant, his brother, and Diane Brown were indicted on May 12, 1983, ⁵ as a result of the activity we have described. The indictment contained thirteen counts; appellant was charged in counts one, ten, and eleven. Count one cited the defendants for conspiring to manufacture cocaine, in violation of 21 U.S.C. Sec. 846 (1982); count ten charged appellant with distributing cocaine hydrochloride, in violation of 21 U.S.C. Sec. 841(a)(1) (1982); and count eleven charged him with possession of cocaine hydrochloride, in violation of 21 U.S.C. Sec. 844(a) (1982).

Prior to trial, appellant moved to suppress the information seized in the search of his home, contending that the information providing probable cause for the search had been obtained in violation of his fourth amendment rights. Following a two-day evidentiary hearing, the magistrate filed a report and recommendation that appellant's motion be denied. The district court adopted the magistrate's report and recommendation with modifications. ⁶

Appellant's case was severed from the codefendants' cases, and he proceeded to trial. At the close of the Government's case in chief, the court granted appellant's motion for acquittal on count ten, charging distribution of cocaine hydrochloride. The jury thereafter acquitted him on count eleven, relating to the possession of cocaine hydrochloride, and the district court declared a mistrial as to count one, the conspiracy count, when the jury was unable to reach a verdict.

Appellant was retried on the conspiracy count. He did not dispute the Government's proof that he had operated a laboratory in his basement; what he disputed was that the laboratory was manufacturing cocaine. He contended that the lab was making an uncontrolled substance known as "open cocaine," and he presented a chemist who testified to that effect. The Government, anticipating this defense, presented a DEA chemist who testified that the processes underway in the laboratory indicated an attempt to manufacture synthetic cocaine, a controlled substance. In addition, the chemist testified that open cocaine had no known use and that the notes and formulas the DEA agents had found in appellant's basement laboratory provided no information for the production of open cocaine. The jury rejected appellant's explanation of his activity and found him guilty as charged. This appeal followed.

II.

Appellant contends that the district court should have suppressed the evidence the DEA agents seized from the basement of his home because Agent Driver's affidavit, which led to the issuance of the search warrant, was based on information obtained in violation of the fourth amendment. Appellant argues that he had a reasonable expectation that any activity in his basement would be private and that the DEA agents therefore needed a search warrant to conduct their surveillance of his basement. Because the agents had no such warrant, appellant concludes that the information they gained from their surveillance, which Agent Driver presented in his affidavit, was tainted, rendering invalid the search warrant based on that affidavit. ⁷

Appellant's expectation that his basement would be private was based on the secluded nature of his home; he believed that his basement was so private that he could operate a cocaine laboratory in front of uncurtained windows. Appellant argues that such an expectation is protected by the fourth amendment, as interpreted by the Supreme Court in Katz v. United States, 389 U.S. 347, ...