Unpublished Disposition, 895 F.2d 1418 (9th Cir. 1988)

MEMORANDUM^**

Brian Blair appeals his conviction, after a conditional guilty plea, for manufacturing methamphetamine. He argues that the district court erred in not suppressing evidence seized during an illegal search incident to his arrest without probable cause. He also argues that the court erred in not suppressing evidence seized pursuant to a search warrant on the grounds that the warrant affidavit included evidence obtained through that illegal search and contained false statements. The government contends that the initial warrantless search was a proper "stop and frisk" and that any inaccuracies in the affidavit were immaterial to the finding of probable cause and the result of simple negligence, rather than intentional falsehood or reckless disregard for the truth. We affirm.

* Blair seeks to suppress all evidence seized pursuant to the August 10, 1988 stop of the vehicle driven by Blair. He argues that the troopers lacked probable cause for the warrantless arrest and the search incident to that arrest. However, the government contends that the troopers acted upon reasonable suspicion in conducting an investigatory stop and that the "pat down" of Blair and "sweep" of his truck were necessary precautions taken to ensure the troopers' safety.

To satisfy fourth amendment scrutiny, " [a]n investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity." United States v. Cortez, 449 U.S. 411, 417 (1981). This "assessment must be based upon all of the circumstances ... as understood by those versed in the field of law enforcement ... [and] must raise a suspicion that the particular individual being stopped is engaged in wrongdoing." Id. at 418.

The district court did not err in finding that the troopers had "substantial information which would indicate to a reasonable person that there was a fair probability that there was a meth [amphetamine] lab in the area and that Mr. Denny was involved with it." Denny was the admitted owner and driver of a van that had been found to contain materials indicative of methamphetamine production. Only nine days earlier a state trooper had found that Denny smelled of methamphetamine production. He was under suspicion for methamphetamine production in California. His prior criminal record included a charge for possession of marijuana. A syringe and IV bottle were found in a car in which he was a passenger. Additionally, Griffin had learned of arguably suspicious activity at Denny's residence. A cable blocked the drive to the residence--something that was not common in that area, numerous people were seen about the residence, and the caretakers reported that the renters had seemed "over anxious" about them spraying around the property.

The troopers also had reasonable grounds for believing that Denny was the driver of the truck. Denny had said that he planned to return to repair the van. The truck came from the same direction that Denny had headed. Further, the truck was parked on a remote stretch of highway at 3:30 a.m. There was apparently very little traffic and there is no indication of any other vehicles having stopped to investigate the disabled van.

The fact that the driver of the truck turned out to be Blair did not alter the appropriateness of the stop. Although the troopers may have lacked probable cause to arrest Blair at that point, they did have sufficient grounds to question him regarding his contact with the van.

However, Blair argues that because the troopers had drawn their weapons he was under arrest from the moment he stepped out of his truck. This argument is without merit. "The use of force during a stop does not convert the stop into an arrest if it occurs under circumstances justifying fears for personal safety." United States v. Buffington, 815 F.2d 1292, 1300 (9th Cir. 1987). In numerous cases, we have held that the fact that an officer has drawn his weapon does not convert a stop into an arrest. See, e.g., id.; United States v. Greene, 783 F.2d 1364, 1367-68 (9th Cir.), cert. denied, 476 U.S. 1185 (1986); United States v. Jacobs, 715 F.2d 1343, 1345-46 (9th Cir. 1983).

In this case, the troopers believed that they were stopping Denny. They were in a remote location at 3:30 a.m. They knew that Denny had been armed on a previous occasion. Additionally, as we have recognized, there is a significant relationship between drug trafficking and violence. See United States v. Post, 607 F.2d 847, 851 (9th Cir. 1979) ("It is not unreasonable to suspect that a dealer in narcotics might be armed."). Detective Griffin, a member of the Spokane Regional Drug Task Force, was an experienced narcotics officer who could rely on his knowledge that the investigation of methamphetamine laboratories is dangerous. See United States v. Castillo, 866 F.2d 1071, 1080-81 (9th Cir. 1989).

Their justification in having their weapons drawn did not evaporate when the driver turned out to be Blair. The events occurred very quickly. Blair stepped out of the truck without having been asked to do so. He apparently moved his hands into his pockets. He failed to produce identification. Additionally, of course, he had been seen acting suspiciously around a van that had been found to contain materials used in methamphetamine production. Thus, it was not unreasonable for the troopers to keep their guns drawn.

For these same reasons, Griffin was justified in frisking Blair. See Terry v. Ohio, 392 U.S. 1 (1968). Under such circumstances, "a reasonably prudent man ... would be warranted in the belief that his safety or that of others was in danger." Id. at 27. Further, in frisking Blair, Griffin found that Blair smelled of methamphetamine production and also discovered an ammunition clip for a 9mm pistol. At this point a "sweep" of the interior of the truck was justified. See Michigan v. Long, 463 U.S. 1032 (1983). The fact that Blair was in the troopers' control at the rear of the truck is irrelevant. As the Supreme Court noted in Michigan v. Long,

Just as a Terry suspect on the street may, despite being under the brief control of a police officer, reach into his clothing and retrieve a weapon, so might a Terry suspect ... break away from police control and retrieve a weapon from his automobile. In addition, if the suspect is not placed under arrest, he will be permitted to reenter his automobile, and he will then have access to any weapons inside.

463 U.S. at 1051-52 (citations omitted). Therefore, the 9mm handgun found cocked and loaded under the drivers' seat was not the fruit of an illegal search. Because the coat and coffee pot were in the passenger compartment, they were properly discovered in the valid sweep for weapons.

We do not need to reach the issue of whether there was probable cause to take Blair into custody at this point. All of the relevant evidence was discovered during the valid "stop and frisk" prior to the point at which the event became an arrest.

II

Additionally, Blair argues that the evidence regarding the materials in the van must be redacted from the affidavit because the officers conducted an unlawful search by using a flashlight to look inside the van. Even assuming that Blair has standing to raise the issue, this argument is without merit. "It is well settled that visual observation by a law enforcement officer situated in a place where he has a right to be is not a search within the meaning of the fourth amendment." United States v. Orozco, 590 F.2d 789, 792 (9th Cir.), cert. denied, 442 U.S. 920 (1979). Here the vehicle in question was parked on public property along a state highway. "The [troopers]' looking through the windows of a vehicle parked on a public street did not violate appellant's reasonable expectations of privacy; anyone walking past the vehicle could easily have observed the [contents of the vehicle]." Id. Further, as the Supreme Court has held, "the use of artificial means to illuminate a darkened area simply does not constitute a search, and thus triggers no Fourth Amendment protection." Texas v. Brown, 460 U.S. 730, 740 (1983) (citing United States v. Lee, 274 U.S. 559, 563 (1927)); see also United States v. Hood, 493 F.2d 677, 680 (9th Cir.), cert. denied, 419 U.S. 852 (1974).

III

Blair also argues that the district court should have suppressed evidence seized pursuant to the search warrant due to misstatements and omissions in the supporting affidavit. The Supreme Court has held that where a defendant succeeds in establishing by a preponderance of the evidence "that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, ... the search warrant must be voided and the fruits of the search excluded." Franks v. Delaware, 438 U.S. 154, 155-56 (1978). We have held that " [w]hether false statements or omissions are intentional or reckless is a factual finding reviewed under the clearly erroneous standard.... [However] [w]hether misstatements and omissions are material to a finding of probable cause is subject to de novo review." United States v. Dozier, 844 F.2d 701, 705 (9th Cir. 1988).

Blair has failed to meet his burden under this standard. He argues that the affidavit is misleading because Griffin failed to mention that Denny was only a passenger in the car when he was initially arrested by Arras and that the syringe found in that car was marked "for insulin use only." He also argues that Griffin misrepresented the order of Arras' activities on the night in question. Griffin stated in his affidavit that Arras observed chemicals and glassware in the van, then drove up the highway and gave Denny a lift. Arras' report indicates that he did not notice these items when he first looked in the van. However, after giving Denny a lift, he went back and looked again. It was then that he noticed the contents of the van.

None of this is material to a finding of probable cause. Further, the troopers were found to be credible by the trial court. In fact, even if the affidavit was lacking in probable cause or otherwise deficient, i.e., due to a negligent misstatement by the troopers, the record indicates that the troopers acted in good faith and reasonably relied on the validity of the warrant. See United States v. Leon, 468 U.S. 897 (1984). Therefore, the district court did not err in refusing to suppress the evidence obtained pursuant to the search warrant.

IV

Finally, Blair was ordered to pay a special assessment fee of $50 pursuant to 18 U.S.C. § 3013. We have held that this provision violates the origination clause of the Constitution, article I, section 7. United States v. Munoz-Flores, 863 F.2d 654 (9th Cir. 1988), cert. granted, 110 S. Ct. 48 (1989). Although Blair did not argue the issue in his appeal, we have raised it sua sponte. See Shah v. United States, 878 F.2d 1156, 1163 (9th Cir.), cert. denied, 110 S. Ct. 195 (1989). Therefore, we vacate that part of Blair's sentence.

AFFIRMED in part, VACATED in part.