United States v. Ortiz, Crim. A. No. 69-CR-353.

• Decision Date: 15 April 1970
• Docket Number: Crim. A. No. 69-CR-353.
• Citation: 311 F. Supp. 880
• Parties: The UNITED STATES of America, Plaintiff, v. Peter Reuben ORTIZ and Scott Allen Noland, Defendants.
• Court: U.S. District Court — District of Colorado

311 F. Supp. 880

The UNITED STATES of America, Plaintiff, v. Peter Reuben ORTIZ and Scott Allen Noland, Defendants.

Crim. A. No. 69-CR-353.

United States District Court, D. Colorado.

April 15, 1970.

James L. Treece, U. S. Atty., and Gordon L. Allott, Jr., Asst. U. S. Atty., Denver, Colo., for plaintiff.

George J. Strate, Denver, Colo., and Maurice F. Fox, Wheatridge, Colo., for defendant Peter Reuben Ortiz.

Arnold Alperstein, Lakewood, Colo., for defendant Scott Allen Noland.

MEMORANDUM OPINION AND ORDER

WILLIAM E. DOYLE, District Judge.

This case is before us on defendants' motions to suppress evidence which was obtained as the result of an allegedly unlawful search and seizure. On March 11, 1970 an evidentiary hearing was held in this court and written briefs have been submitted by the attorneys for both defendants as well as by the United States. The issues presented by the motions now stand submitted and are ready for resolution.

Briefly, the facts relevant to these motions to suppress are as follows: On October 31, 1969, a search warrant was issued by a United States Commissioner authorizing the search of

the premises known as a Mountain Cabin, approximately 1.9 miles south of the intersection of Highway #40, and the road leading into Hyland Hills development area. (See attached map)

The attached map sketches Highway #40 and the road leading to Hyland Hills Development Area. It includes a notation of cabins along the Hyland Hills road and various distances between these cabins and other landmarks. It indicates that the subject cabin (point #8 on the map) is approximately .3 miles from the surveillance cabin (point #7 on the map), and is described as "a single story white wood frame mountain cabin consisting of two rooms with a front and rear entrance." The property to be seized is described in the warrant as "dangerous drugs, phenyl-2-propanone and other chemicals and equipment used in the manufacture of methamphetamine or other depressant or stimulant drugs."

The above warrant was issued pursuant to a sworn affidavit of John M. Zienter, an agent for the Bureau of Narcotics and Dangerous Drugs. This affidavit discloses that Agent Zienter had met with defendant Noland several times, and on these occasions had discussed a sale of phenyl-2-propanone, a precursor for the manufacture of methamphetamine, by Agent Zienter to Noland. The affidavit further states that on October 24, 1969, Zienter met Noland and they drove to a mountain location near Bergen Park, Colorado, where they proceeded to dig up three bottles of phenyl-2-propanone and five beakers. They then proceeded to the cabin in question on the Hyland Hills road and deposited the bottles and beakers. Noland requested that Zienter bring to the cabin later that night nine more bottles of phenyl-2-propanone, along with other materials. On October 26, 1969, Zienter returned with the requested chemicals. On October 30, 1969, Noland informed Zienter that he planned to go to the cabin that weekend (November 1-2, 1969) and manufacture methamphetamine.

A second warrant was issued on November 2, 1969, describing the property to be searched as

An out-building known as an outdoor toilet on the premises known as a Mountain Cabin, approximately 1.9 miles south of the intersection of Highway #40, and the road leading into Hyland Hills development area. (See attached map)

The attached map is identical with the map attached to the first warrant described above. Also, the property to be seized is described in the same manner as in the first warrant.

As in the case of the warrant to search the cabin in question, the out-building warrant was issued pursuant to a sworn affidavit of Zienter, which affidavit restated the same facts contained in the preceding affidavit with the following additions: On November 2, 1969, the first warrant was executed. While approaching the cabin Agent Zienter looked through an open window into the out-building and observed a clear glass bottle containing a substance which had the appearance of methamphetamine.

The motions to suppress of defendants Noland and Ortiz are virtually identical. The essence of the attack on the warrants is: (1) The first search conducted on November 2, 1969 of the cabin was a "no knock" search in violation of 18 U.S.C. § 3109; (2) the first search warrant was not executed in accordance with its terms because the search was not conducted during daytime; (3) both warrants insufficiently described the premises to be searched and the property to be seized; (4) the constitutional requirement of probable cause was not met with respect to either warrant; and (5) the allegation in the second affidavit that a bottle had been seen in the out-building through a glass window is false because of physical impossibility and hence it voids the warrant issued pursuant thereto. Defendants also contend that the returns on the warrant are invalid because of a discrepancy as to when the warrants were executed and when the returns were made. This last contention has been disposed of adverse to defendants at the hearing. The evidence clearly established that a mistake was made as to the dates of execution and return on the return. Accordingly, the government was given leave to amend the return so as to state the proper dates.¹

We fully agree with the defendants that 18 U.S.C. § 3109 requires that an officer give notice of his authority and purpose before entering a house. See Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968). However, based upon the evidence presented at the hearing before this court, we find that the above requirements were met. The search of the mountain cabin was, it is true, conducted early in the morning. It was a day-time warrant. Agent Zienter testified that he and Agent Orton approached the cabin and Agent...