Unpublished Disposition, 872 F.2d 431 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 872 F.2d 431 (9th Cir. 1989)

No. 86-1220.

United States Court of Appeals, Ninth Circuit.

Before MERRILL and WILLIAM A. NORRIS, Circuit Judges, and WILLIAM B. ENRIGHT, District Judge** .

MEMORANDUM

Appellant Gerald Lyle Johns was arrested on August 4, 1981. Together with six codefendants, Johns was subsequently indicted on charges of both possession of marijuana with intent to distribute and conspiracy to possess marijuana, in violation of sections 846 and 841(a) (1) of Title 21, United States Code.

This case has had a protracted history. In 1981, the district court suppressed the seized marijuana, in light of the government's failure to obtain a warrant prior to taking core samples of the suspected contraband. This court upheld the suppression, but the United States Supreme Court reversed and remanded. United States v. Johns, 707 F.2d 1093 (1983), rev'd, 469 U.S. 478 (1985). On remand, Johns again moved to suppress the marijuana, on grounds that its seizure was tainted by a prior illegal vehicle detention. This motion was denied by the district court, notwithstanding a finding that the Pima County Sheriff's Department had illegally detained and searched Johns' vehicle. The court found that the subsequent seizure was not tainted by the illegality. It is this finding which lies at the heart of the instant appeal.

Johns was convicted following a bench trial in June 1986. During the trial, Johns moved for reconsideration of the suppression order. This motion was denied, and Johns was sentenced on July 21, 1986. All other defendants had entered guilty pleas and had been sentenced.

On July 30, 1986, Johns filed an appeal, which was heard on August 14, 1987. Pursuant to a Memorandum Decision dated September 22, 1987, this court affirmed Johns' conviction. The basis of the Memorandum Decision was the "independent source" exception to the exclusionary rule. On November 3, 1987, Johns petitioned the court for a rehearing, and this was conducted on May 11, 1988.

This case was subsequently remanded to the district court for the limited purpose of making findings of fact contemplating the "inevitable discovery" doctrine. In light of the district court's findings, this court ordered supplemental briefing. Oral argument was held on February 16, 1989. For the reasons explained below, this court now vacates its September 22, 1987 Memorandum Decision and affirms Johns' conviction.

STATEMENT OF FACTS

In May 1980, the Tucson Police Department notified United States Customs Agent Dale Harper that Johns was suspected of smuggling drugs into the United States. Sometime later, Agent Harper was informed by the Customs Office in Sierra Vista, Arizona, that Johns' airplane had been using the local airport. The Customs Office indicated that the airplane was piloted by Johns and former codefendant Carlos Leon. In addition, Agent Harper was told that Leon had purchased aviation fuel at the Sierra Vista Airport and had placed it in his truck. Finally, Agent Harper knew that there was some connection between Leon and another former codefendant, Juan Duarte, who had a record of narcotics convictions.

At approximately 1:30 a.m. on May 4, 1981, Customs Officer Eshelman received an anonymous telephone call at the duty desk of the Customs Office. The caller reported that an airplane was landing at a Tucson dragstrip which was owned by Johns, and that there was corresponding ground activity. Officer Eshelman informed Agent Harper of the call.

Officer Eshelman also contacted the Pima County Sheriff's Department, on the supposition that they would respond more quickly. At approximately 2:10 a.m., the Sheriff's Department responded with several patrol cars and numerous officers. After stopping and detaining Johns and former codefendant Dennis Hearron, the officers searched Johns' truck and airplane. No contraband was discovered. The district court later found that this detention and search was illegal.

After being told by Officer Eshelman that the Sheriff's Department would proceed to the dragstrip, Agent Harper met Customs Agent Young at an intersection near the dragstrip. At or before the time of this rendezvous, Agent Harper had been informed that Johns and Hearron had been stopped and searched, and that no contraband was discovered. Agent Harper also learned that Johns and Hearron had been released.

While still at the intersection, Agent Harper noticed Johns and Hearron drive past. He followed them, and then drove to the residence of Duarte, where he observed two trucks leaving the premises. Agent Harper followed these trucks to an airstrip near Bowie, Arizona, where they were met by a plane. A short time later, and with the assistance of backup agents, Agent Harper stopped and searched the trucks. The agents seized numerous bales of marijuana.

DISCUSSION

Standard of Review

A district court's findings of fact at a suppression hearing must be upheld unless they are clearly erroneous. United States v. Echegoyen, 799 F.2d 1271, 1277 (9th Cir. 1986). Conclusions of law, however, are reviewed de novo.

Merits

The district court in its Supplemental Findings of Fact No. 7 acknowledged that Customs Agent Harper decided to set up surveillance at Duarte's house as a direct result of the identification of the defendants during the illegal stop. The sole issue now before this court is whether the illegally obtained identification sufficiently taints the later obtained evidence to justify its suppression.

The question, as put by Judge Duniway in United States v. Bacall, 443 F.2d 1050, 1056 (9th Cir.), cert. denied, 404 U.S. 1004 (1971), is "... what kind of direction or impetus did the illegal seizure give to the ... investigation?" In answering that question, Judge Duniway stated:

Where the evidence sought to be suppressed was discovered through utilization of some legally obtained leads, as well as some illegally obtained leads, the substantiality of the legally obtained leads may influence the determination whether the evidence ought to be suppressed. And if the illegally obtained leads were so insubstantial that their role in the discovery of the evidence sought to be suppressed "must be considered de minimis," then suppression is inappropriate.

Id. at 1056 (citation omitted).

It is important to note that the government's investigation of Johns was in no way initiated by, or dependent upon, the illegal stop and search. Rather, precisely the opposite appears to be the case. The Customs Service had been investigating Johns and Duarte prior to the August 4 seizure, and it had secured information implicating Johns in narcotics trafficking. It was further known that Duarte had a record of narcotics-related offenses, and that various activities of Leon and Duarte were in some way connected.

Moreover, before proceeding to the intersection during the morning of the search, Agent Harper had received indications that criminal activity was in progress. He knew from the anonymous phone call that an airplane was landing at Johns' dragstrip, that a vehicle was meeting the plane, and that Johns and Hearron were themselves at the site. He also knew that Leon had picked up large drums of aviation fuel at the Sierra Vista airport.

Given the circumstances of this case, the illegally obtained lead was insubstantial relative to the legally obtained leads. The mere fact that the Fourth Amendment illegality directed attention to Johns does not in and of itself require exclusion of the evidence later unearthed. Hoonsilapa v. INS, 575 F.2d 735, 738 (9th Cir.), modified, 586 F.2d 755 (1978). Thus, this court finds the district court did not clearly err in its findings of fact.

CONCLUSION

Upon due consideration of the parties' briefs and exhibits, the arguments advanced at hearing, and for the reasons set forth herein, the court hereby affirms the conviction of defendant Gerald Lyle Johns.

AFFIRMED. The mandate shall issue forthwith.

 *

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

 **

Honorable William B. Enright, United States District Judge for the Southern District of California, sitting by designation