USA. v. Bishop
| Decision Date | 09 May 2001 |
| Docket Number | DEFENDANT-APPELLANT,No. 00-30044,PLAINTIFF-APPELLEE,00-30044 |
| Citation | 264 F.3d 919 |
| Parties | (9th Cir. 2001) UNITED STATES OF AMERICA,, v. TIMOTHY A. BISHOP, |
| Court | U.S. Court of Appeals — Ninth Circuit |
[Copyrighted Material Omitted] Counsel Amy Adelson, Dershowitz, Eiger & Adelson, P.C., New York, New York, for the defendant-appellant.
Hugh W. Berry, Assistant United States Attorney, Seattle, Washington, for the plaintiff-appellee.
Appeal from the United States District Court for the Western District of Washington Robert J. Bryan, District Judge, Presiding D.C. No. CR-99-05242-RJB
Before: Donald P. Lay,* Stephen S. Trott and Marsha S. Berzon, Circuit Judges.
Timothy Alan Bishop was convicted of one count of conspiracy to manufacture methamphetamine in violation of 21 U.S.C. §§§§ 841(a)(1), 841(b)(1)(A), and 846 and one count of establishment of a methamphetamine manufacturing operation in violation of 21 U.S.C. §§§§ 856(a)(1), 856(b), and 18 U.S.C. §§ 2. He was subsequently sentenced to 188 months imprisonment. On appeal, Bishop argues that the district court erred in finding probable cause to support a search warrant for his residence. Bishop also argues that the district court erred by allowing illegally-seized evidence into evidence and that this error was not harmless. In addition, Bishop argues that his sentence violates the sentencing guidelines. For reasons to be explained, we reverse and remand for a new trial.
On January 1, 1999, Robert Holmes was taken into custody by the police after he turned himself in on a warrant related to forgery. At the time, Holmes told the police that he had information regarding Timothy Bishop and a methamphetamine operation Bishop was running out of his home in Washougal, Washington.
Detective John Hess spoke with Holmes by phone and later at the police station regarding his knowledge of the methamphetamine operation. Holmes told Detective Hess, among other things, the following: (1) Bishop had a large-scale methamphetamine manufacturing operation at his residence; (2) Bishop had "cooked" methamphetamine the day before; (3) Bishop had a hidden room in his residence that he used when producing methamphetamine; (4) Bishop used a storage unit, rented by Holmes but subleased to Bishop, to keep chemicals, glassware, and books related to the manufacture of methamphetamine; (5) there were other individuals involved with Bishop's operation; (6) Bishop used a certain process to manufacture the methamphetamine; (7) Bishop drove a blue pick-up truck; (8) Bishop possessed a number of firearms throughout his residence; and (9) Bishop had several ounces of methamphetamine and a large sum of money at his residence.
Detective Hess attempted to corroborate Holmes' statements by sending officers to check out the storage locker. The officers determined that the storage locker was rented by Robert C. Miller and that T. A. Bishop and Karl Behn were listed as having access to the locker. Detective Hess questioned Holmes and determined that Robert C. Miller was his alias. While the officers were at the storage facility, they noticed a blue pick-up truck, matching the description given by Holmes, drive up to the gate. The driver of the truck attempted to enter the locked gate, but was unable to do so and left. The officers ran a check on the license plate number and confirmed that it was registered to Bishop with the same address that Holmes had provided them.
Detective Hess decided to apply for a warrant to search Bishop's residence and the storage unit. Before the warrants were obtained, however, he sent a drug task force to secure Bishop's residence, based on his concern that guns were located in the residence. Detective Hess also instructed officers to make a traffic stop on Bishop's truck and detain him while the residence was secured.
The officers stopped Bishop's truck several miles from his residence ("Washington stop"). The officers conceded that there was no probable cause for this stop. The officers searched Bishop's truck and found a semi-automatic pistol that they determined was stolen. Bishop was placed under arrest for possession of a stolen firearm. Detective Hess then proceeded to interrogate Bishop, despite his request for counsel. Scott Youngs, a passenger in Bishop's truck, was also arrested at the time on an outstanding felony warrant.
When the drug task force arrived at Bishop's residence, they knocked loudly on the front door. After no response, they checked the door and found it unlocked. They entered the residence, and as Holmes had reported to Detective Hess, found Bishop's girlfriend in an upstairs bedroom. The task force continued to check the residence for other occupants. While officers were in the home, they observed guns, a glass smoking pipe, and a surveillance system. The officers also confirmed the existence of the secret room that Holmes had revealed to Detective Hess. According to a neighbor, the police were in the home for over two hours.
On January 2, 1999, Detective Hess sought and received a search warrant for Bishop's residence and the storage locker. The warrant affidavit included: (1) statements made by Holmes; (2) observations made by officers at the storage locker; (3) observations made by officers during the Washington stop; (4) statements made by Bishop during Detective Hess' interrogation at the traffic stop; and (5) observations of the task force when securing the residence.
Detective Hess testified that during the search of Bishop's residence, officers found no evidence that methamphetamine had been cooked in the secret room. There was no chemical odor in the house or in the secret room. The officers did find items consistent with the manufacture of methamphetamine, however, such as a can of lye, starter fluid, and pseudoephedrine pills. Detective Hess testified at trial that all the items necessary to manufacture methamphetamine were not present in Bishop's home. The officers also found numerous firearms throughout the house. There was no cash found in any of the safes, but a small amount of finished methamphetamine was found in the bedroom.
After the search of the residence and storage unit, Bishop was charged with one count of conspiracy to manufacture methamphetamine, one count of operating an establishment to manufacture methamphetamine, one count of possession of methamphetamine with intent to distribute, and one count of the manufacture of methamphetamine. Bishop pled not guilty to all of the charges.
Youngs was also charged as part of the conspiracy to manufacture methamphetamine. Youngs, however, pled guilty prior to the trial and testified as a Government witness at trial. Holmes, the informant, was not charged but agreed to cooperate with the Government and testify against Bishop at trial.
Prior to trial, Bishop moved to suppress evidence obtained from his residence and the Washington stop. At a suppression hearing, the district court found the Washington stop was unsupported by probable cause or even a reasonable well-founded suspicion of ongoing or imminent criminal activity. The court determined that statements made by Bishop at the time of his arrest could not be used in the search warrant affidavit.
The court further held that the police did not have exigent circumstances to justify the warrantless entry into Bishop's home. As a result, the court suppressed all the evidence secured during the illegal police actions. The court redacted the illegally-obtained information from the warrant affidavit. The court then reviewed the excised affidavit and concluded that probable cause independently existed to issue the search warrant.
Bishop also moved to suppress evidence seized in a traffic stop in Clackamas County, Oregon ("Oregon stop"). On June 15, 1998, Bishop was stopped by Deputy Kevin Layng because he did not have a front license plate on his vehicle. The passenger in Bishop's car was Youngs, but when Deputy Layng asked about the identification of Youngs, Bishop stated that he only knew him as "Scott." Deputy Layng asked Bishop if he could check inside the vehicle for any identification of "Scott."
When Deputy Layng leaned into the vehicle, he noticed a strong chemical odor. Deputy Layng proceeded to look further into the vehicle and found various items related to the manufacture of methamphetamine. These items were a two gallon, clear glass flask with a white powder residue on the neck of the bottle, a glass funnel, and a pump used in methamphetamine laboratories. Bishop was placed under arrest for possession and manufacture of a controlled substance. Deputy Layng asked for permission to search Bishop's vehicle, but Bishop declined. Based on Layng's observations, he performed a warrantless vehicle search. In the trunk of the car were numerous cans labeled lye and five gallon sized buckets with an unknown powder substance in plastic bags. A semi-automatic handgun was also seized. Layng requested a search warrant to relocate the vehicle and further search its contents. The request was granted.
Youngs was then questioned and his true identity was determined. It was discovered that there was an outstanding warrant for Youngs' arrest, and he was taken into custody.1 The district court denied the motion to suppress and allowed the evidence of the Oregon stop into trial as direct evidence supporting the conspiracy. The court did not limit the evidence under Rule 404(b) of the Federal Rules of Evidence.
After a jury trial, Bishop was found guilty of conspiracy to manufacture methamphetamine and establishment of a methamphetamine operation. The court dismissed the charge of possession with intent to distribute, and the jury acquitted Bishop of the manufacture of methamphetamine. The district court sentenced Bishop to 188 months imprisonment. Bishop now appeals his conviction and sentence.
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