Unpublished Disposition, 863 F.2d 886 (9th Cir. 1988)

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U.S. Court of Appeals for the Ninth Circuit - 863 F.2d 886 (9th Cir. 1988)

UNITED STATES of America, Plaintiff/Appellee,v.David COLLICOTT, Defendant/Appellant.

No. 88-3020.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 31, 1988.Decided Dec. 1, 1988.

Before SKOPIL, NELSON and BRUNETTI, Circuit Judges.


David Collicott was convicted of conspiring to manufacture a controlled substance in violation of 21 U.S.C. §§ 846 and 841(a) (1) (1982). On appeal he argues that the district court erred by denying his motion to suppress evidence seized pursuant to search warrants. Specifically, he contends that the affidavit in support of the warrants contained false statements and omissions, the government failed to establish probable cause for the issuance of the warrants, and the warrants were overbroad. We reject these arguments and affirm.


Collicott argues that the affidavit in support of the warrants misrepresented the existence of a mobile methamphetamine laboratory. The affidavit states that an informant told authorities about a mobile laboratory. At the suppression hearing an officer testified that the informant described the mobile laboratory as a school bus. Collicott asserts that because the affidavit omitted the description of the laboratory, the affidavit lead the magistrate to believe that a motorhome owned by Collicott's brother was in fact the mobile laboratory. We conclude that this omission did not materially mislead the magistrate. The affidavit's reference to a mobile laboratory was not intended to provide probable cause to search the motorhome.

Collicott also claims that the affiant's assertion that "search warrants were served on the homes and businesses of the Collicotts where quantities of methamphetamine were discovered" mislead the magistrate. At the suppression hearing, the affiant testified there were three Collicott brothers, as well as defendant's son. Nevertheless, the affiant did not know which Collicotts were involved in the prior searches. Because three of the Collicotts were present at the property, we conclude that the failure to list first names was inconsequential.

Collicott further contends that the affidavit mislead the magistrate as to the source of a chemical odor. According to Collicott, the affidavit states that the odor came from a specific outbuilding, yet at the suppression hearing, the officers testified that they were uncertain of the source. Collicott misinterprets the affidavit and the testimony. The affidavit does not state that the odor came from a particular outbuilding; it states that a breeze was blowing from the direction of a particular building and that the breeze carried the odor. The officers' testimony is entirely consistent with the affidavit.

Collicott argues that the warrants were issued without probable cause since unnamed informants were not shown to be reliable and their information was uncorroborated and stale. We conclude, however, that even without the informant's tips, the affidavit provided a substantial basis to support the magistrate's finding of probable cause. See United States v. Yarbrough, 852 F.2d 1522, 1531 (9th Cir.) (appellate review is limited to determining if the magistrate had a substantial basis for concluding that probable cause existed), cert. denied, 109 S. Ct. 171 (1988). The affidavit indicates that the officers were trained in detecting methamphetamine laboratories and that they detected an odor associated with methamphetamine production.

Collicott nevertheless argues that although the officers detected a chemical odor, they had probable cause to search only the outbuildings, not the residence. This argument lacks merit because the officers always considered the residence as a possible source of the odor. Collicott further contends there was no probable cause to issue warrants to search his car and his brother's motorhome and car. This argument also lacks merit because those searches produced no admitted evidence.

Collicott next claims that the language in the warrants directing the officers to seize "documents kept or maintained for the manufacture and/or distribution of methamphetamine" is impermissibly overbroad. We disagree. The warrants set an objective standard by which the officers could differentiate documents subject to seizure from those not subject to seizure. See United States v. Spilotro, 800 F.2d 959, 963-65 (9th Cir. 1986). In addition, " [t]he nature ... of the criminal activity [is] relevant in determining the particularity requirements of a warrant." United States v. Hillyard, 677 F.2d 1336, 1340 (9th Cir. 1982). Since the crime is conspiracy to manufacture or distribute methamphetamine, and the warrants authorized the officers to search all papers for evidence of an intent to manufacture or distribute methamphetamine, the warrants are not overbroad.

Collicott argues alternatively that even if the warrants are not overbroad, certain items seized, including telephone bills, a letter, hypodermic needles, and utility bills are beyond the scope of the warrants. We reject these claims as well. The telephone bills are within the scope of the warrants because they tend to show communication in furtherance of the conspiracy. The letter is also within the scope of the warrants because it relates to the distribution of methamphetamine. The needles are equipment used in conjunction with methamphetamine, and therefore their seizure was authorized by the warrants.

The warrants did not expressly authorize the seizure of the utility bills. Nevertheless, their admission into evidence as indicia of possession is harmless, since Collicott's possession of the property was undisputed. See United States v. Armstrong, 654 F.2d 1328, 1336 (9th Cir. 1981) (admission of unlawfully seized evidence is harmless when such evidence was cumulative), cert. denied, 454 U.S. 1157 (1982).



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 Circuit Rule 36-3