Unpublished Disposition, 915 F.2d 1581 (1990)

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U.S. Court of Appeals for the Ninth Circuit - 915 F.2d 1581 (1990)

Before GOODWIN, Chief Judge, and FLETCHER and FERNANDEZ, Circuit Judges.

1

MEMORANDUM*

2

Following the denial of his motion to suppress evidence found as a result of the search of his van by Albany police officers, Richard Dennis Taylor entered a conditional plea of guilty to conspiracy to manufacture, possess with intent to distribute, and to distribute methamphetamine. On appeal from his conviction, he challenges the denial of his motion to suppress. We affirm.

3

In May 1988, approximately eight months before the vehicle search in question, Detective Mark Lee of the Albany Police Department began an investigation of a store clerk's report that two men, smelling of an odor associated with methamphetamine, had purchased items known to be used in the manufacture of methamphetamine: propane, aluminum foil, pyrex plates, rubber gloves, and coffee filters. The employee had reported the license number of the purchasers' car to Lee. Upon further investigation, Lee discovered that the vehicle recently had been purchased by Richard Taylor, who paid in cash and smelled strongly of "cat urine."

4

On January 4, 1989, Lee received a call from another store clerk who said that two men had come into the store and purchased items associated with the manufacture of methamphetamine. These men also had a strong odor about them, which the store clerk who waited on them recognized as the smell of methamphetamine.

5

Seven days later, Detective Dave Severns of the Linn County Sheriff's Office received a phone call from Deputy Judy Gage of Clackamas County Sheriff's Office. Gage related to Severns information received from an informant that Ginger Zeppetella was involved in a methamphetamine laboratory located in Linn County on property owned by Dan and Richard Taylor. The name associated with the property was "TNT Baling." Further research by Detective Severns revealed that Ginger Zeppetella had been arrested in December 1988, and had given as her own the address of the Taylor property and a telephone number which matched that listed for TNT Baling.

6

On January 12, 1989, the store employee again phoned the Albany Police Department and reported that the same men from the previous week had returned to the store, still smelling of "cat urine," and were in the process of purchasing more of the items they had bought on the last trip. The dispatcher who received the call immediately sent Officers Michael Mann and Robert Anderson to the store.

7

Upon their arrival the officers were met by a store employee who pointed out a tan Dodge motorhome as belonging to the two suspects. Observing that it was filled with cardboard boxes, the officers followed the van as it headed out of town.

8

After about half a mile, Officer Anderson turned on his overhead lights and stopped the van. Taylor was driving and had two passengers: Kevin Grice in the front seat and Bradley Hopkins in the back. As they approached, the officers could read "Corningware Laboratory Pyrex Glassware" printed on the cardboard boxes filling the back of the van and they detected a slight odor of methamphetamine. Officer Anderson asked for Taylor's driver's license and subsequently also asked for identification from the two passengers. Officer Mann recognized Hopkins as a user and distributor of methamphetamine.

9

After running an inquiry for outstanding warrants on Taylor and the passengers, the officers discovered that a statewide warrant was out on Hopkins and arrested him. They then asked all three occupants to get out of the van and checked the area around Hopkins' seat for weapons. Officer Lee, who had approached the vehicle after the stop, found a loaded semi-automatic shotgun and a large plastic bag containing chemicals, glassware, and a funnel near where Hopkins had been sitting.

10

Officer Mann then became aware of a strong odor of methamphetamine and, after placing Taylor and Grice under arrest, he and the other officers conducted a complete search of the van. They found one hundred pounds of phenyl acetic acid and a large quantity of Corning glassware. A warrant was then obtained to search the property in Linn County and further evidence was discovered which formed the basis for the indictments of Taylor and his cohorts.

11

The district court ruled correctly in denying Taylor's motion to suppress.

12

At the suppression hearing before the district court, Officer Mann apparently testified that three considerations figured into his decision to stop Taylor's van: the possibility of drug involvement based on information received from the dispatcher; possible D.U.I. investigation; and impeding the flow of traffic. The district court found that the officers had probable cause to believe that the van contained evidence of the crime of methamphetamine production, noting that the information obtained during the preceding months' investigation of the Taylors, together with the smell of the men and nature of the items purchased at the store, was sufficient to justify the stop and subsequent search of Taylor's van.

13

It is well-established that the protections of the fourth amendment apply to the investigatory stop of the vehicle at issue here. United States v. Cortez, 449 U.S. 411, 417 (1981). An investigatory stop must be justified by some manifestation that the detainee is, or is about to be, engaged in criminal activity. d.; Duran v. City of Douglas, No. 89-15236, slip op. 5595, 5603 (9th Cir. June 4, 1990).

14

The Supreme Court has said that the totality of the circumstances--"the whole picture"--must yield "a particularized and objective basis for suspecting the particular person[s] stopped of criminal activity." Cortez, 449 U.S. at 417-18. In assessing the legitimacy of a particular stop, the Supreme Court has articulated a two-element test for courts to apply in such cases. Id. at 417. First, the reviewing court must undertake an appraisal of the surrounding circumstances, based upon "objective observations, information from police reports, if such are available, and consideration of the modes or patterns of certain kinds of lawbreakers." Id. at 418. The second element is "that the process just described must raise a suspicion that the particular individual being stopped is engaged in wrongdoing." Id.

15

Taylor argues that his purchase of ordinary household items, all of which are "available for sale to the general public" and not "uniquely connected to the manufacture of methamphetamine," combined with the mere observation that his colleagues "smelled strange," is insufficient to have given the officers a reasonable suspicion that he and his mates were engaged in criminal activity. He fails to address the probative value of all the information possessed by Albany police officers in addition to their observations of him, Grice, and Hopkins after they left the store. See Cortez, 449 U.S. at 418 (listing sources of information court may look to in evaluating reasonable suspicion issue).

16

As the district court emphasized, a wealth of information existed to give the police a reasonable suspicion that Taylor was engaged in criminal activity. There were the facts gleaned through the previous phone calls from store employees, the information about the laboratory in Linn County, and inferences drawn from the police officers' own knowledge of the smells and activities associated with methamphetamine manufacture. The district court was correct in determining that a reasonable suspicion existed to justify the stop of Taylor's van.1 Cf. United States v. Martinez, 808 F.2d 1050 (5th Cir.) (DEA agents' observation of driver's purchase of particular combination of chemicals, along with other circumstances of purchase, was sufficient to justify suspicion that occupants intended to use chemicals to manufacture methamphetamine and legitimate agents' stop of vehicle), cert. denied, 481 U.S. 1032 (1987).

17

Taylor makes much of the apparent flimsiness of the impeding-traffic charge and contends that the officers' reference to it as a justification for the stop demonstrates that the police themselves were not convinced that the information they had obtained up to that point was sufficient to justify pulling him over. In the first place, impeding traffic was only one of the reasons prompting Officer Mann's decision to stop Taylor. See supra p. 4. Secondly, some uncertainty on the part of officers involved as to the presence of a reasonable suspicion or probable cause is not dispositive. As this court indicated in United States v. Moses, 796 F.2d 281 (9th Cir.1986), the fact that an arresting officer does not believe probable cause to arrest exists before making a search will not preclude a finding of adequate probable cause by a reviewing court where independent scrutiny of the record reveals that any reasonable officer would have probable cause without waiting for a lawyer to so advise. Id. at 284 (citing Florida v. Royer, 460 U.S. 491 (1983) (plurality holding that officer's testimony that he did not think he had probable cause to arrest Royer before a search did not foreclose further examination of the probable cause issue)).

18

Logically, the same analysis should apply to findings of reasonable suspicion. Thus, even if Officers Mann and Anderson were unsure whether the information obtained from the dispatcher and their own observations of the defendants' behavior was sufficient to justify the stop and accordingly cited possible traffic infractions as additional justifications, the district court's independent finding of probable cause (and, implicitly, of reasonable suspicion) satisfies the requirements of the fourth amendment.

19

We also find that the resulting search was legal. In United States v. Ross, 456 U.S. 798 (1982), the Supreme Court held that police officers who have stopped an automobile legitimately and have probable cause to believe that contraband or evidence is concealed somewhere within the vehicle may conduct a warrantless search that is as thorough as that which a magistrate could authorize. This "auto exception" to the fourth amendment's warrant requirement defeats Taylor's argument that the search of his van was per se unreasonable. The events subsequent to the initial stop may be fairly construed as sufficient to convert the officers' reasonable suspicion of criminal activity into probable cause. In particular, as he approached, Officer Mann was able to read from the labels that the boxes loaded in Taylor's van contained Corning laboratory glassware, to detect the odor of methamphetamine, and to identify co-defendant Hopkins as someone he knew personally to be involved in the distribution and use of methamphetamine.

20

In the alternative, the trial court could have upheld the search as properly incident to Hopkins's arrest. See United States v. Lorenzo, 867 F.2d 561 (9th Cir.1989) (citing New York v. Belton, 453 U.S. 454 (1981)).

21

AFFIRMED.

1

The district court may have collapsed the inquiry whether reasonable suspicion existed to stop the van into its evaluation of whether there was probable cause to search the van once the stop was made. In any case, under de novo review, the evidence presented was adequate to justify a finding of reasonable suspicion