U.S. v. Williams

• Decision Date: 07 April 1980
• Docket Number: 79-1470 and 79-1561,Nos. 79-1454,s. 79-1454
• Citation: U.S. v. Williams, 630 F.2d 1322 (9th Cir. 1980)
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Johnny WILLIAMS, Gregory Leon Murchison, Lawrence Daniels, charged as Paul Abrams, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1322

630 F.2d 1322

UNITED STATES of America, Plaintiff-Appellee, v. Johnny WILLIAMS, Gregory Leon Murchison, Lawrence Daniels charged as Paul Abrams, Defendants-Appellants.

Nos. 79-1454, 79-1470 and 79-1561.

United States Court of Appeals Ninth Circuit.

April 7, 1980.

Rehearing Denied in No. 79-1470 May 29, 1980.

Certiorari Denied Oct. 6, 1980.

See 101 S.Ct. 197.

Judy C. Clarke (argued), Frank T. Vecchione, San Diego, Cal., on brief; Kenneth R. McMullan, San Diego, Cal., for defendants-appellants.

Roger W. Haines, Jr., Asst. U. S. Atty., argued, Michael H. Walsh, U.S. Atty, Roger W. Haines, Jr., Asst. U.S. Atty, on the brief, San Diego, Cal., for plaintiff-appellee.

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

Before PECK, ^* ANDERSON, and NELSON, Circuit Judges.

NELSON, Circuit Judge:

Defendants in this case appeal their convictions for conspiracy to manufacture and attempt to manufacture the controlled substance phencyclidine ("PCP"). Five hours after border patrol agents arrested the defendants (Williams, Daniels, and Murchison), Narcotics Task Force ("NTF") agents conducted a warrantless search of the Pace Arrow motor home that the defendants had been travelling in and another warrantless search of the white-over-red Cadillac that the defendants had also used. In both vehicles, the agents discovered raw chemicals and paraphernalia associated with the manufacture of PCP.

Defendants argue that they were arrested without probable cause and that these arrests taint the evidence found in the motor home and the Cadillac. They also contend that the evidence should have been excluded at trial because no exigent circumstances justified the failure of the Narcotics Task Force agents to obtain a warrant. In addition, defendant Murchison asserts that the evidence introduced against him shows no more than his mere proximity to illegal drugs and his mere association with those who controlled them. He argues that such evidence alone cannot support his conviction and that the trial court erred in denying his Rule 29 motion for acquittal. We reject these contentions, however, and affirm the convictions.

Statement of Facts

At about two in the morning on December 9, 1978, Border Patrol Agent Molloy was driving south on Highway 79 and passed three southbound vehicles in the vicinity of the Vail Lake area of Rancho California. One of these was a dilapidated green Ford; the others were a white-over-red Cadillac and a Pace Arrow motor home. Some time later, Molloy was travelling north on the same highway and noticed the motor home and the Cadillac parked at a cafe and a gas station that were closed for the night. He proceeded to travel northward, when he received a report from another border patrol agent that a green Ford a mile or so north of him had been seen parked next to an empty border patrol car and that the driver had acted suspiciously when a tow truck operator arrived and asked what he was doing.

Molloy caught up to the Ford, the same one he had seen with the motor home and the Cadillac less than an hour before. Molloy noted that it was not a local car and that it was riding low, and he suspected that the driver of the car might be smuggling illegal aliens. When Molloy stopped the car and asked the driver if he could look in the trunk, the driver responded that Molloy was welcome to look, but that he did not have a key. He added, however, that his uncle in the Pace Arrow by the cafe had one. He also said his uncle's name was Williams.

Leaving the car with other agents, Molloy returned with the driver Fenter to the cafe. There he knocked on the door of the Pace Arrow, and defendant Williams answered it. When Molloy asked him if he had a nephew in the area, Williams asserted first that he did, and then that he did not. The others in the motor home were also asked if they had a nephew in the area or any nephew at all, but none replied. Molloy then asked all of them if they knew anything about the Ford or if they had a key to it. Several of them answered no, and Williams, speaking for the entire group, told Molloy that no one in the motor home had a key to anything.

Molloy returned to the Ford, and with the help of several other border patrol agents he broke into its trunk, and found several cardboard boxes containing beakers, plastic bags filled with white powder and wet paper towels that reeked of a strong chemical odor. After this discovery, Molloy and others returned to the motor home, which had, in the interim, started to travel northward, but subsequently stopped near another gas station.

Using his car's public address system, Molloy instructed all those inside to come out. Among the five inside the motor home at this time were Williams and the two other appellants, Daniels and Murchison. They were frisked for weapons, and placed in back of two border patrol cars. Then two border patrol agents briefly went inside the Pace Arrow for less than a minute to ensure that no one else remained inside. Inside the motor home they observed several 5-gallon water containers.

About five hours later (at about 8:00 AM), agents from the Narcotics Task Force arrived. Shortly after they arrived, they searched the motor home. They found three 1-gallon jugs of piperidine in a bathroom cabinet in the rear of the motor home, a box of baking soda and six bottles of lye in the bathtub, twelve blue-tinted 5-gallon water jugs on the floor between the bunks, a 5-gallon plastic bucket, a pair of heavy rubber gloves, a triple-beam balance scale, and a mask-type breathing apparatus on the floor of the motor home to the right of the doorway.

In the interim, agents had found the white-over-red Cadillac hidden behind a number of junk cars near where Molloy had seen it parked with the motor home. The NTF agents towed the Cadillac several miles to a dirt lot across from the gas station where the Pace Arrow had stopped before the agents took custody of the defendants. The agents then broke into the trunk of the Cadillac and found significant quantities of cyclohexanone, hydrochloric acid, bromobenzene, and ether. Neither search was conducted with a warrant.

Probable Cause to Arrest

When the defendants were told, at gun point, to come out of the motor home and were frisked and placed in the back of a border patrol sedan, they were arrested within the meaning of the fourth amendment. Dunaway v. New York, 442 U.S 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); United States v. Chamberlin, 609 F.2d 1318 (9th Cir. 1979). Because evidence seized as a result of an illegal arrest must be suppressed, Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), we must determine if these arrests were made with probable cause, that is, we must decide if, at the time they apprehended the defendants, the agents had enough information to "warrant a prudent man in believing that (the defendants) had committed or (were) committing an offense." Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964).

Another case would present itself if nothing linked the Ford with the motor home, but only a short time before Agent Molloy had seen the Ford and the motor home travelling in tandem, and the driver of the Ford had said he was travelling with Williams and identified Williams as the driver of the motor home. Moreover, Agent Molloy had questioned Williams and had found his conduct suspicious and his answers evasive.

The materials the agents found in the trunk of the Ford included not only large packages of white powder, but also metal shavings, wet paper towels, beakers, and rubber gloves. These suggested that the driver of the car was engaged in the manufacture as well as the transportation of controlled substances, yet except for the mobile home there did not appear to be any place where the manufacture could be taking place. The possibility that the motor home was being used as a mobile lab further strengthened the link between the contraband and those inside the motor home.

We emphasize that the evidence supports the inference not merely that the motor home was being used as a mobile lab or that one of its occupants was using the Pace Arrow as a lab, but also that all those inside the Pace Arrow had to be involved in the activity. Those inside a mobile laboratory travelling on a seldom used road in the middle of the night are not like those who by chance are in a bar when police have probable cause to search it. Cf. Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 342, 62 L.Ed.2d 238 (1979) ("A person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause.").

The case before us is distinguishable both from United States v. Beck, 598 F.2d 497 (9th Cir. 1979), and United States v. Chamberlin, 609 F.2d 1318 (9th Cir. 1979). In Beck, agents stopped the defendants travelling in a car after having them under surveillance for four days. During the entire 4-day period, they had observed neither evidence of any controlled substances nor evidence of anything else that would suggest that the defendants were committing a particular crime. There was "a strong suggestion that the stop and detention was a pretext or subterfuge to enable the officers to conduct a warrantless search after having failed to otherwise substantiate their suspicions." 598 F.2d at 502. By contrast, in this case the agents had evidence that a particular crime was being committed. They were able to link the defendants with a car in which they had just found a large quantity of contraband.

In Chamberlin, a police officer on a routine patrol recognized the defendant and a companion walking in the Chicano Park area of San Diego after midnight. The police officer knew that they had extensive criminal records for narcotics violations, receipt of stolen property, forgery and burglary, and he noticed that they both quickened their pace and...