Unpublished Disposition, 878 F.2d 1439 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 878 F.2d 1439 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Gary Lee NEWMAN, Defendant-Appellant.

No. 88-3164.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 27, 1989.Decided June 29, 1989.As Amended on Denial of Rehearing and Rehearing En BancSept. 13, 1989.

Before ALARCON, BRUNETTI and O'SCANNLAIN, Circuit Judges.


MEMORANDUM* 

Gary Newman appeals from his conviction for conspiracy to manufacture and distribute methamphetamine in violation of 21 U.S.C. §§ 841(a) (1) and 846. Newman entered a guilty plea before the district court pursuant to Rule 11(a) (2) of the Federal Rules of Criminal Procedure thereby preserving his right to appeal from the denial of his suppression motion.

Newman argues that a warrant for the search of certain premises and its curtilage including "vehicles owned by or stored there by the person(s) found to be in control of the premises, and the person(s) found to reside at, or be in control of the above-described premises" did not authorize the search of his van because it was not specifically described in the warrant. We conclude that a search of Newman's vehicle was authorized by the warrant, and affirm.

We review independently the denial of a motion to suppress evidence and without deference to the district court's findings or legal conclusion. United States v. Miller, 812 F.2d 1206, 1208 (9th Cir. 1987) (citation omitted).

"When an official search is properly authorized--whether by consent or by the issuance of a valid warrant--the scope of the search is limited by the terms of its authorization." Walter v. United States, 447 U.S. 649, 656 (1980) (footnote omitted). "A search must be limited to the terms of the warrant." United States v. Crozier, 777 F.2d 1376, 1381 (9th Cir. 1985) (citing Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 394 n. 7 (1971)).

Newman contends that the search warrant is defective because it does not specifically identify the vehicles to be searched. Newman also contends that assuming the search warrant is valid for vehicles belonging to the owners of the premises, Newman did not reside there.

The search warrant authorized a search for methamphetamine, meth lab equipment, chemicals, and other evidence pertaining to the manufacturing and distribution of methamphetamine in the described "premises" and in "vehicles owned by, or stored there by, the person(s) found to be in control of the premises and the person(s) found to reside at, or be in control of, the above-described premises." Thus, the search warrant limited the vehicles that could be searched to those belonging to persons residing at or in control of the premises. Contrary to Newman's contention, the warrant was not defective because it limited the vehicles that could be searched to the persons who controlled or resided at the premises.

Newman also contends that the officers could not search his van under the warrant because he was not in control and did not reside at the premises. We review the district court's determination of facts at a suppression hearing for clear error. United States v. Lee, 699 F.2d 466, 468 (9th Cir. 1982); United States v. Issacs, 708 F.2d 1365, 1369 (9th Cir. 1983).

When the officers entered the premises to execute the warrant, Newman was asleep in a mobile home. A search of the mobile home disclosed a total of 42 weapons, including assault rifles, mini-firearms, mini-thirties, and uzis. Some of the weapons found in the mobile home were loaded. Detective Michael Brady of the Oregon State Police testified that he did a fly-over approximately one month before the search. Newman's van was on the premises on that date. The district court inferred from these facts that Newman was a member of a security force and, as such, in control of the premises used to produce methamphetamine. The district court's finding that the search of Newman's van was authorized by the warrant is supported by the evidence in the record. Accordingly, this finding is not clearly erroneous.

Because the search warrant specifically authorized the search of vehicles belonging to persons in control of the premises, the denial of the motion to suppress the evidence obtained as a result of the search of Newman's van is AFFIRMED.

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This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3