United States v. Freitas

• Decision Date: 14 June 1985
• Docket Number: No. CR-85-0025 EFL.,CR-85-0025 EFL.
• Citation: 610 F. Supp. 1560
• Parties: UNITED STATES of America, Plaintiff, v. Raymond M. FREITAS, Walter Freitas, Jonny E. McClellan, Defendants.
• Court: U.S. District Court — Northern District of California

610 F. Supp. 1560

UNITED STATES of America, Plaintiff, v. Raymond M. FREITAS, Walter Freitas, Jonny E. McClellan, Defendants.

No. CR-85-0025 EFL.

United States District Court, N.D. California.

June 14, 1985.

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Eric Swenson, Asst. U.S. Atty., San Francisco, Cal., for plaintiff.

Penelope M. Cooper, Berkeley, Cal., Tom Nolan, Nolan & Parnes, Palo Alto, Cal., J. Tony Serra, San Francisco, Cal., for defendants.

SUPPRESSION ORDER

LYNCH, District Judge.

The defendants in this case are charged with manufacturing methamphetamine in violation of 21 U.S.C. section 841(a)(1), and with conspiracy to commit the above offense in violation of 21 U.S.C. section 846. The instant matter involves a motion to suppress evidence filed by defendant Raymond Freitas and joined in by co-defendants Walter Freitas and Jonny McClellan. The Government opposes the motion and also objects to the joinder of Walter Freitas and McClellan on the ground that those defendants lack standing. This opinion addresses the legality of the search as to Raymond Freitas only. A separate opinion will be issued at a later date regarding the joinder of Walter Freitas and McClellan.

I. Background

On December 12, 1984, Magistrate Wayne D. Brazil issued search warrants for eight locations: (1) 9839 Crestview Drive, Clearlake, California; (2) 7237 Skyline Boulevard, Oakland, California; and (3) six different storage lockers, identified by number, at Mission Mini Storage, 26869 Mission Boulevard, Hayward, California. The warrants were based upon an affidavit submitted by Drug Enforcement Administration Agent Steven P. Wood, which contained information compiled during an investigation of a possible scheme to manufacture controlled substances. Affidavit of Steven P. Wood hereinafter referred to as the "Wood affidavit". In addition to reciting the actions and observations of DEA agents during the course of the investigation, the Wood affidavit included reports of ten separate tips from an anonymous informant regarding Raymond Freitas' alleged involvement in the clandestine manufacture and distribution of methamphetamine. Each of the warrants required that the search be conducted on or before December 16, 1984.

On December 13, Magistrate Brazil issued a warrant purporting to authorize a surreptitious entry and search of the same Clearlake residence for which a search warrant had been obtained the previous day. The affidavit in support of the Government's application referred to the existing warrants, described surveillance information placing Raymond Freitas at the house in Clearlake on December 12, and stated the affiant's belief that a methamphetamine laboratory may have been constructed at the residence. Affidavit of Laura M. Hayes hereinafter referred to as the "Hayes affidavit". Beyond this, the affidavit merely stated that "it would be advantageous for the investigation and safety of the surrounding residents if agents were able to enter 9839 Crestview Drive and determine the status of the laboratory, and any chemicals that may be present." Hayes affidavit, ¶ 9.

A surreptitious nighttime entry and search of the Clearlake residence was conducted on December 13. The agents observed extensive laboratory equipment and chemicals used in the manufacture of methamphetamine. A partial list of the items observed by the agents was prepared and delivered to the magistrate, but because these requirements were deleted from the warrant, no property was seized nor was a copy of the warrant left at the premises. On December 17, the Government applied for an order extending the date of the original search warrants issued on December 12. The application was made in the form of a motion by Assistant United States Attorney Eric Swensen and was supported by a brief supplemental affidavit from Agent Wood which described the laboratory equipment and other items observed during the surreptitious entry into the Clearlake residence. Based upon this information, the Government alleged that Freitas and other persons would return to the residence in order to manufacture methamphetamine. Magistrate Brazil thereupon extended the execution date of the warrants to December 26 in a short written order on December 17. The warrants were executed on December 20 and numerous items of evidence were seized which the defendant seeks to have suppressed.

II. The Original Search Warrants

The defendant challenges the validity of the eight search warrants issued on December 12 on the grounds that the Wood affidavit contained insufficient facts to support the magistrate's finding of probable cause, and that even if the warrant is determined to be sufficient on its face, certain facts were intentionally or recklessly omitted from the affidavit so as to make it substantially misleading.

A. The Facial Sufficiency of the Wood Affidavit

The first issue with respect to the eight original warrants is whether "the magistrate had a `substantial basis for ... concluding' that probable cause existed." Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332-2333, 76 L.Ed.2d 527 (1983) (quoting Jones v. United States, 362 U.S. 257, 261, 80 S.Ct. 725, 731, 4 L.Ed.2d 697 (1960)). When issuing the warrant, the task of the magistrate is "simply to make a common-sense decision whether, given all of the circumstances set forth in the affidavit before him, including the `veracity' and `basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." Id. 462 U.S. at 238, 103 S.Ct. at 2332. Scrutiny as to the sufficiency of the affidavit does not take the form of de novo review; rather, "a magistrate's `determination of probable cause should be paid great deference by the reviewing courts.'" Illinois v. Gates, 462 U.S. at 236, 103 S.Ct. at 2331 (quoting Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 590 (1969)). Accord Massachusetts v. Upton, ___ U.S. ____, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984); United States v. Miller, 753 F.2d 1475, 1479 (9th Cir.1985); United States v. Estrada, 733 F.2d 683, 684 (9th Cir.), cert. denied, 105 S.Ct. 168 (1984); United States v. Mendez-Jimenez, 709 F.2d 1300, 1302 (9th Cir.1983).

1. The Reliability of the Informant

The most important factor in evaluating the sufficiency of the Wood affidavit is the reliability of the anonymous informant, since his information was essential to the probable cause showing for each of the warrants. The informant's tips caused the DEA to initiate its investigation of Raymond Freitas, guided the agents during the course of the investigation, and established the link between Freitas' activities and the alleged drug manufacturing scheme. In order to satisfy the probable cause requirement, the Wood affidavit must provide a substantial basis for crediting the hearsay statements of the informant. See Jones v. United States, 362 U.S. at 269, 80 S.Ct. at 735; United States v. Beusch, 596 F.2d 871, 874 (9th Cir.1979).

Although the affidavit does not indicate the basis of the informant's knowledge, it does provide corroboration for several important facts included in his tips, including his allegation that Raymond Freitas had manufactured, and was about to manufacture, methamphetamine. The informant's first tip on July 27, 1984 provided then current information that Freitas was operating a methamphetamine lab at his cabin in Clearlake. This tip was supported by information from local law enforcement officers who told the DEA that there had been complaints of strong chemical odors emanating from the Clearlake residence in July and August, 1984, and that the officers had observed hoses running from the house to the lake. According to an agent qualified to render such opinions, these two facts indicated that it was likely that a clandestine drug laboratory was in operation at the time.

In two telephone calls on December 3 and December 5, 1984, the informant notified the DEA that Freitas was going to leave Oakland to begin manufacturing methamphetamine either at a location north of Sacramento or at his cabin in Clearlake. On December 9, while agents were following Freitas and other unidentified persons from Mission Mini Storage to a hardware store, the informant called again to inform the DEA that Freitas and others were loading equipment for the manufacturing operation and preparing to leave for the lab site. During the next nine hours, agents watched Freitas and several other unidentified persons load Freitas' motor home with boxes and proceed to Clearlake. After reaching the Clearlake area, the motor home stopped at a grocery store where agents observed one of the passengers in the vehicle purchase several large blocks of ice. Two days later, the agents observed a person leave the Clearlake residence and proceed to a store in Clearlake where he bought four additional bags of ice. A DEA chemist noted in the affidavit that ice is commonly used in the manufacture of methamphetamine. The affidavit also related the agents' observations that the windows in the lower level of the Clearlake residence were covered and that there was a hose running from the house to the lake. Two DEA agents familiar with the investigation of clandestine drug labs opined that these facts indicated the existence of a lab on the premises.

The agents' substantial verification of these two tips provides persuasive evidence of the informant's reliability. Illinois v. Gates, 103 S.Ct. at 2335-36. See also United States v. Roberts, 747 F.2d 537, 549 (9th Cir.1984); United States v. Camp, 723 F.2d 741, 745 (9th Cir.1984). The informant's knowledge of otherwise innocent facts about Raymond Freitas' personal life,¹ the technical accuracy of certain of his comments regarding Freitas' alleged drug manufacturing activities,² and the fact that Freitas had a previous conviction on drug charges and a reputation within the DEA...