Unpublished Disposition, 845 F.2d 1029 (9th Cir. 1985)

No. 85-1084.

United States Court of Appeals, Ninth Circuit.

Before GOODWIN and FLETCHER, Circuit Judges and SAMUEL P. KING^* , District Judge.

MEMORANDUM^** 

Defendant/Appellant Torrence Ray Banks appeals his conviction of possession of a controlled substance with intent to distribute in violation of 21 U.S.C. § 841(a) (1) (1982). Banks seeks review of the district court's refusal to suppress evidence seized pursuant to a warrant issued by a state magistrate on the basis of an affidavit of a state police officer setting forth information acquired from an untested, confidential informant. State and federal drug enforcement officers acting together executed the search of the apartment where Banks was staying as a guest and the crawl space beneath the apartment. The 1981 search of the premises and the resulting seizure of, inter alia, 250 grams of heroin led to a 1984 federal grand jury indictment of Banks.

Banks pled guilty to the offense charged in the indictment on the condition that he be permitted to appeal the district court's denial of his pretrial motions, including his suppression motion. The district court accepted Banks' conditional plea and sentenced him. This appeal ensued. We affirm.

On May 19, 1981, Oakland police officer Everitt Gremminger ("Gremminger") filed an affidavit before a magistrate of the Municipal Court of the State of California for Alameda County requesting a warrant to search: (1) the premises at 2283 22nd Avenue, Apartment # C ("22nd Avenue apartment"); (2) the premises at 3381 Jordan; (3) the premises at 315 Rishell; (4) two automobiles; and (5) the persons of Morris McClendon ("McClendon"), Sharon Edwards ("Edwards"), Charles Lewis ("Lewis"), and Defendant/Appellant Torrence Banks ("Banks"). The affidavit attested primarily to Officer Gremminger's experience in undercover narcotics investigations and to information furnished by X, an "untested confidential, reliable informant." In addition to the affidavit, Gremminger produced X for the issuing Magistrate at which time X swore to the facts contained in the affidavit related by him to Gremminger. The sworn testimony of X, however, was not recorded. Gremminger did advise the Magistrate that some of X's information was corroborated by information provided by unrelated confidential, credible informants who had proven reliable in at least twelve prior searches. Gremminger also detailed conversations he had with a second confidential, reliable informant ("Y").

In his affidavit, Gremminger outlined a three year, on-going investigation of a heroin distribution organization in Oakland known as "The Mob." Gremminger stated in his affidavit that on May 18, 1981, he "met with an untested confidential, reliable informant," whom he referred to as X. X's anonymity was preserved "for fear of possible death or injury to X...." X's fear was based on X's knowledge of persons allegedly involved in "The Mob" and the link between these persons and the alleged deaths of at least five persons.

X told Gremminger that he had personally known Morris McClendon for at least two years and that McClendon had handled large quantities of heroin and cocaine for The Mob during this period. X also identified Charles Lewis and Felix Wayne Mitchell ("Mitchell") as principals in "The Mob." According to X, Lewis functioned as the main heroin and cocaine supplier in Oakland, distributing through Mitchell who, in turn, dealt through McClendon. X told Gremminger that McClendon and Banks controlled the heroin supply in Westwood Gardens and that Banks delivered heroin to this locale on a daily basis. X correctly identified police photographs of McClendon, Lewis and Mitchell, as well as Banks.

A second confidential informant, identified in Gremminger's affidavit as Y, verified X's statements concerning Mitchell's status within "The Mob" structure. Gremminger attested to Y's history of providing valuable and consistently reliable information concerning drug trafficking in the Oakland area to state and federal officials.

Gremminger further corroborated much of the information in his affidavit through police records and his personal knowledge attained pursuant to his own investigation of The Mob. Gremminger knew that McClendon and Mitchell, as well as Banks, had been arrested on separate occasions during the previous three years in connection with narcotics investigations. It was also Gremminger's knowledge that heroin had been seized pursuant to each of these prior arrests and that Banks' prior arrest was in connection with an investigation of narcotics trafficking at Westwood Garden.

X further advised Gremminger that McClendon lived at 3381 Jordan with Edwards. X stated that, from May 1 through May 18, he was at the Jordan location on four separate occasions at which time he personally observed McClendon with 25 to 30 bags containing a brown powder that McClendon referred to as heroin. McClendon allegedly informed X that he had twice the 25 to 30 bag amount.

Gremminger also stated in his affidavit that X informed him that McClendon and Edwards formerly lived at the 22nd Avenue apartment, and had since given the apartment to Banks. X told Gremminger that between May 13 and May 18, he personally observed McClendon and Banks diluting and repackaging brown powder for street sale at the 22nd Avenue apartment location. X also attested to seeing packaging materials such as scales, measuring spoons, and toy balloons at the 22nd Avenue apartment.

X told Gremminger that Banks drove a vehicle described as a green Honda Accord, California License No. 1AFC479. This automobile, according to X, was given to Banks by McClendon. Gremminger attested to this communication with X and qualified it with his personal knowledge of the fact that McClendon was arrested on March 14, 1980, at which time McClendon was driving the automobile identified by X. Gremminger was also aware that this particular vehicle was involved in the arrest of Ronald Lee on May 3, 1981. X identified a photograph of Lee who, according to X, was a close personal friend of Banks.

On the basis of Gremminger's affidavit and representations to the magistrate and X's sworn testimony, the magistrate issued the search warrant.

On May 20, 1981, six or seven Oakland police officers and a Drug Enforcement Administration (DEA) agent executed the search warrant at the 22nd Avenue apartment. The officers knocked on the door, identified themselves and revealed that they had a search warrant in their possession. The officers forced open the door when they received no response. They found Banks and a woman in the master bedroom.

In an adjoining room, the officers located a plastic bag containing a beige powder determined to be heroin, an Ohaus scale, a large number of balloons, and a jar of lactose. The officers seized an additional pound of heroin in the form of a brown substance from a crawl space area underneath the apartment reached through the garage of the apartment.

Banks told an officer that he did not live in the apartment, but that McClendon had given him a key to the apartment and occasionally invited him to spend the night there, including the night before the search. Banks was arrested incident to the search, but was not prosecuted at that time for any offense arising out of the search.

C. Banks' 1984 Arrest, Indictment, Plea and Conviction

On June 27, 1984, Banks voluntarily approached Gremminger at the Oakland police station, apparently for the purpose of becoming an informant himself. Banks revealed his involvement in the sale and distribution of heroin in the Oakland area in the course of several days of questioning by state and federal agents.

On July 18, 1984, Banks was indicted by a federal grand jury for possession of 250 grams of heroin with intent to distribute. Banks moved to dismiss the indictment and, inter alia, to suppress the evidence seized pursuant to the May 20, 1981 search of the 22nd Avenue apartment. The district court denied Banks' motions. As to the motion to suppress, the district court found that Banks lacked standing to contest the search warrant. Alternatively, the court, applying federal law, found that if Banks had an expectation of privacy in the premises searched, then the affidavit showed sufficient probable cause to search.

On January 22, 1985, the second day of trial before a jury, Banks entered a conditional plea of guilty under Fed. R. Crim. P. 11(a) (2), reserving the right to seek appellate review of his denied motions. This Court exercises jurisdiction pursuant to 28 U.S.C. § 1291 (1982) to review the district court's denial of Banks' motion to suppress.

We first address the question¹  whether, in a federal prosecution, federal or state law governs the exclusion of evidence seized pursuant to a warrant issued by a state magistrate and supported by the affidavit of a state police officer but executed jointly by state and federal officials. Asserting that California law imposes a more restrictive exclusionary rule under the two-part Aguilar-Spinelli test than its federal counterpart, Banks argues that state law controls. The government, on the other hand, argues that federal exclusionary standards, established in Illinois v. Gates, 462 U.S. 213, reh'g denied, 463 U.S. 1237 (1983), apply. This Court, in United States v. Chavez-Vernaza, 834 F.2d 1508, 1511-13 (9th Cir. 1987), recently put to rest any remaining doubt as to the controlling law under circumstances dispositive of this case. That doubt was resolved in favor of the government.²  Id. at 1513.

Prior to Chavez-Vernaza, we had consistently held that evidence recovered by federal officials acting in concert with state officials in violation of state law but in compliance with federal law was admissible in federal court. See United States v. Kovac, 795 F.2d 1509, 1511-12 (9th Cir.), cert. denied, 107 S. Ct. 951 (1986); United States v. Henderson, 721 F.2d 662, 664 (9th Cir. 1983) (per curiam), cert. denied, 467 U.S. 1218 (1984); United States v. Adams, 694 F.2d 200, 201 (9th Cir. 1982), cert. denied, 462 U.S. 1118 (1983); United States v. Hall, 543 F.2d 1229, 1231-32 (9th Cir.) (en banc), cert. denied, 429 U.S. 1075 (1976). Left unresolved, however, was the question of the appropriate choice of law as to admissibility and exclusion of evidence in federal prosecutions in circumstances where state officials acted independently of federal agents. Moreover, a determination of "acting in concert" is problematic. As evidenced by the facts of this case, the question arises as to the degree of federal involvement sufficient to constitute a concerted state/federal seizure. The dichotomy between state and federal standards of exclusion in a number of states and the slippery slope created by factual issues of federal involvement in essentially state seizures left federal district judges without definite guidance.

In Chavez-Vernaza, we held that evidence seized in compliance with federal law was admissible in federal prosecution without regard to state law. 834 F.2d at 1513. Consequently, federal rules of admissibility and exclusion apply even in the complete absence of federal involvement in the evidence-gathering stage of an investigation, provided the resulting prosecution is in federal court pursuant to federal charges. Id. at 1511-13. We hold, therefore, that the validity of the search warrant leading to the seizure of evidence at 2833 22nd Avenue is scrutinized under federal law. The legality or illegality of the search under California law and the degree of federal agent involvement in the procurement and execution of the search warrant, however slight, is of no relevance to the admissibility of the evidence in this case.

Banks' challenge to the admissibility of the evidence seized from the 22nd Avenue apartment is based on his contention that the affidavit supporting the search warrant lacked sufficient probable cause to justify the search. A narrow standard of review is applied in assessing a magistrate's decision to issue a search warrant. United States v. Stanert, 762 F.2d 775, 779 (9th Cir.) amended, 769 F.2d 1410 (1985). Our duty is "simply to ensure that the magistrate had a 'substantial basis for ... conclud [ing]' that probable cause existed." Gates, 462 U.S. at 238-39. A magistrate's finding of probable cause is to be afforded "great deference" and is not to be reversed unless his decision is clearly erroneous. United States v. Dozier, 826 F.2d 866, 871-72 (9th Cir. 1987); United States v. McQuisten, 795 F.2d 858, 861 (9th Cir. 1986). Moreover, in doubtful cases, preference should be given to upholding the validity of the warrant. United States v. Calabrese, 825 F.2d 1342, 49 (9th Cir. 1987); United States v. Peacock, 761 F.2d 1313, 1315 (9th Cir.), cert. denied, 474 U.S. 847 (1985).

The task of the issuing magistrate in evaluating whether probable cause has been shown is:

[t]o make a practical, common-sense decision whether, given all 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 at a particular place.

Gates, 462 U.S. at 238; see United States v. Moreno, 758 F.2d 425, 427 (9th Cir. 1985). "Unlike the Aquilar-Spinelli test, which required the tip independently to satisfy both the veracity/reliability and basis of knowledge criteria, the Gates test permits a deficiency in one criteria to be compensated ... by some other indicia of reliability."³  United States v. Roberts, 747 F.2d 537, 543 (9th Cir. 1984). The "veracity" and "basis of knowledge" inquiries should be applied in a "common sense, practical manner, [and] not in a rigid or technical fashion." United States v. Miller, 753 F.2d 1475, 1479 (9th Cir. 1985) (per curiam). The focus of our inquiry, therefore, is whether Gremminger's affidavit provided the magistrate with a substantial basis for concluding that the 22nd Avenue apartment probably contained evidence of criminal activity, mindful of the reliability that can be attached to X and the information he provided.

The validity of the warrant for the search of the 22nd Avenue apartment turns, to a substantial degree, on the trustworthiness that can be assigned to X as an untested, confidential informant. X's veracity and the reliability of the information he provided was adequately established by, inter alia, the fact that he testified under oath before the issuing magistrate. In most instances, independent corroboration of information provided by an informant, especially where untested and confidential, is crucial in crediting the informant's information with the requisite reliability.

Here, X's testimony was adequately corroborated. Although bearing on matters peripheral to the probability of finding evidence of illegal activity at the 22nd Avenue apartment, X related information concerning the prior criminality of Banks and his alleged cohorts which Gremminger confirmed through police records and his own investigation of "The Mob." In addition to Gremminger corroboration, additional confidential informant Y who had a proven history of providing reliable information related information concerning "The Mob's" hierarchy, confirming the information provided by X. "Interlocking tips from different confidential informants enhance the credibility of each." United States v. Landis, 726 F.2d 540, 543 (9th Cir.), cert. denied, 467 U.S. 1230 (1984).

Gremminger was also able to verify details concerning addresses furnished by X. Similarly, Gremminger validated information provided by X concerning the automobile driven by Banks, its ownership by McClendon, and the connection between this automobile and the arrest of an individual linked to Banks. This information bolsters X's credibility.

Furthermore, X spoke from personal knowledge. He visited the 22nd Avenue apartment where he observed Banks and McClendon with heroin and drug packaging materials. Where an informant speaks from personal knowledge and not on the basis of hearsay, the information is usually afforded additional reliability. United States v. Freitas, 716 F.2d 1216, 1221 (9th Cir. 1983). Based on the above, we conclude that the information provided by X to which Gremminger attested was sufficiently trustworthy to support a finding of probable cause.

Moreover, in this case the issuing magistrate was able personally to observe X's demeanor pursuant to his direct examination of X, and could evaluate X's truthfulness. Although we do not attach any substantive significance to the unrecorded oral testimony of X,⁴  the magistrate's first-hand observation of X provided the magistrate with a sufficient basis for crediting X's testimony with the requisite reliability. Furthermore, X's exposure to criminal prosecution for offering perjured testimony lends additional credence to the information contained in the Gremminger affidavit.

Our review does not end here, however. The information in Gremminger's affidavit as it relates to the premises searched must be examined to determine the likelihood that evidence of criminality was present at the 22nd Avenue apartment. X related to Gremminger his personal observation of heroin and drug packaging materials at the 22nd Avenue apartment. This information provided a direct link between the premises searched and the likelihood that evidence of criminality was present there. Combined with the reliability that can be assigned to X and the information he provided, we conclude that the issuing magistrate had sufficient bases for concluding that is was reasonably probable that evidence of criminality was present at the 22nd Avenue Apartment.

We, therefore, AFFIRM.