Unpublished Disposition, 861 F.2d 269 (9th Cir. 1988)

Annotate this Case
U.S. Court of Appeals for the Ninth Circuit - 861 F.2d 269 (9th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellee,v.Joseph Michael SMITH, Defendant-Appellant.

No. 88-5050.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 2, 1988.Decided Oct. 31, 1988.

Before FLETCHER, CANBY and O'SCANNLAIN, Circuit Judges:


MEMORANDUM* 

Joseph Michael Smith appeals the district court's denial of his motion to suppress evidence on the ground that the affidavit supporting the search warrants was insufficient to establish probable cause. Smith also contends that the district court erred in admitting evidence obtained by federal agents in violation of the "knock and notice" requirements of 18 U.S.C. § 3109. We affirm.

BACKGROUND

Randall T. Johnson, a special agent for the Drug Enforcement Agency (DEA), received three telephone calls from an anonymous informant in June 1987. The informant advised Randall that Joseph Smith (1) manufactured and distributed methamphetamine in partnership with Steven Fay; (2) leased one or more public storage lockers in which he stored equipment and chemicals necessary to produce methamphetamine and finished drug products; (3) carried an automatic handgun during narcotics transactions; and (4) had a prior association with Keith Lugo, an individual under indictment for methamphetamine-related charges. The informant stated that Smith had a prior drug-related conviction. The informant said that he personally observed Smith carry equipment used for the production of methamphetamine into Smith's residence, and that he subsequently helped Smith move that equipment into a public storage locker. The informant also described the room in Smith's residence used for methamphetamine production, and the amounts produced. Independent DEA investigation confirmed the informant's statements with respect to Smith's prior felony conviction, his relationship with Steven Fay, the public storage locker rented in his name, and the vehicles registered to his address. On the basis of an affidavit submitted by Agent Johnson, a federal magistrate issued three warrants authorizing the search of Smith's residence and two leased storage lockers.

The search of the public storage locker leased in Smith's name revealed two bottles of acetone with methamphetamine residue, a chemical supply book, and a list of chemical formulas for the manufacture of methamphetamine. Search of an adjoining locker leased to Fay revealed certain precursor chemicals and firearms. After searching the lockers, DEA agents proceeded to Smith's residence, where Steven Fay was arrested in front of the house. Other agents proceeded to the door of Smith's residence. According to the agents' later testimony, they received no response after knocking at the door and announcing their presence; they consequently broke the lock with a ramming device. The agents found various quantities of methamphetamine, a handwritten formula for producing the drug, and other items related to the manufacture of methamphetamine in Smith's residence. After moving unsuccessfully to suppress the evidence obtained in the searches, Smith conditionally pled guilty to one count of conspiracy to produce methamphetamine, and was sentenced to two years imprisonment.

DISCUSSION

Although Smith raises substantial questions regarding the staleness of some of the information in the affidavit, we conclude that the district court properly denied the motion to suppress under the good faith rule set forth in United States v. Leon, 468 U.S. 897, 923 (1984). See also United States v. Michaelian, 803 F.2d 1042, 1046 (9th Cir. 1986). In Leon, the Supreme Court established a framework in which evidence is suppressed "only in those unusual cases in which exclusion will further the purposes of the exclusionary rule." 468 U.S. at 918. To that end, the Court noted that suppression may be appropriate where the issuing magistrate is misled by the false or reckless statements of the affiant, or has wholly abandoned his judicial role. In addition, the good faith exception may be inapplicable where an affidavit is so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. See Leon, 468 U.S. at 922-23.

In this case, we do not agree that the issuing magistrate merely ratified the "barebones" conclusions of the affiant. See Michaelian, 803 F.2d at 1047. There is no evidence that the magistrate was misled, or that the affiant was dishonest. Although Smith contends that the magistrate abandoned his impartial role in granting the warrant, the record indicates otherwise. That the magistrate inquired into the evidence underlying the affidavit is demonstrated by the changes and additions he suggested. Nor was the affidavit so devoid of factual support as to preclude objective reasonable reliance on the warrant by federal agents. To the contrary, the affidavit set forth facts received from a confidential informant and verified by law enforcement officers. Because the searches were carried out in good faith, we hold that the district court properly denied the motion to suppress.

Smith also contends that any evidence obtained in the search of his residence should be suppressed because DEA agents improperly failed to knock and announce their presence prior to entering the house by force:

The officer may break open any outer door or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.

18 U.S.C. § 3109 (1982). Although DEA agents testified that they knocked and announced themselves twice before resorting to forcible means of entry, defendants Smith and Fay testified that the agents immediately used the battering ram upon reaching the door of Smith's residence. We review the district court's determinations of historical facts under the clearly erroneous standard. See United States v. McConney, 728 F.2d 1195, 1200-1201 (9th Cir. 1984), cert. denied, 469 U.S. 824 (1984) (en banc). The district court's selection of relevant legal principles is reviewed de novo. Id.

The testimony of defendants Smith and Fay that the DEA agents failed to comply with section 3109 does not compel a finding that the district court's credibility determinations were clearly erroneous. See United States v. Phelps, 490 F.2d 644, 646 (9th Cir.), cert. denied, 419 U.S. 836 (1974). The district court was entitled to resolve the credibility issue in favor of the agents. Moreover, the district court made factual findings that would justify an exception to the "knock and notice" requirements of section 3109. See United States v. Whitney, 633 F.2d 902, 909 (9th Cir. 1980) (the existence of exigent circumstances may excuse total non-compliance with section 3109), cert. denied, 450 U.S. 1004 (1981) (en banc). "Mild exigency may exist where there is a likelihood that the occupants will try to escape, resist, or destroy evidence." United States v. McConney, 728 F.2d 1195, 1206 (9th Cir.) (en banc), cert. denied, --- U.S. ---- (1984). The ease with which methamphetamine may be disposed of, taken together with the facts that Smith was known to keep a firearm and that Steven Fay was arrested in full view of Smith's residence, satisfy the exigency exception to the knock and notice requirements of section 3109.

The district court's denial of the motion to suppress, and its judgment, are AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3