Unpublished Disposition, 889 F.2d 1096 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 889 F.2d 1096 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.William Roy MARTIN, Defendant-Appellant.

No. 88-1352.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 12, 1989.Decided Nov. 22, 1989.

Before CHOY, CANBY and WILLIAM A. NORRIS, Circuit Judges.


William Roy Martin appeals from his conviction, following a conditional guilty plea, of possession of cocaine with the intent to distribute. Martin attacks his warrantless arrest, and the searches, pursuant to warrants, of his house, automobile, and business storage facility. We affirm.


In reviewing a magistrate's finding of probable cause, we look to the affidavit in support of the warrant to determine whether the magistrate had a substantial basis for concluding that probable cause existed. United States v. Angulo-Lopez, 791 F.2d 1394, 1396 (9th Cir. 1986). While probable cause to believe a person is engaged in criminal activity is not always sufficient to give rise to probable cause to search the suspect's property, a magistrate may draw inferences about where evidence is likely to be kept on the basis of the nature of the evidence and the type of offense. Id. at 1399. "In the case of drug dealers, evidence is likely to be found where the dealers live." Id. It is also "commonplace" for drug traffickers to have evidence of criminal activity in their cars. United States v. Spearman, 532 F.2d 132, 133 (9th Cir. 1976). Thus, if there is probable cause to believe that the owner is engaged in drug trafficking, a warrant to search a home or car may be issued. Angulo-Lopez, 791 F.2d at 1388-89; Spearman, 532 F.2d at 133.

The affidavit set forth sufficient facts that the magistrate had a "substantial basis" for believing that Martin was involved in drug trafficking. Martin was believed to be associated with Hawaii Outfitters. He arrived at Hawaii Outfitters on the day the box was delivered, and was seen transporting what appeared to be the box of cocaine away from the facility. He was later seen carrying a box that appeared to be the box of cocaine back into the facility. Looking at these facts, the magistrate could reasonably believe that Martin had taken possession of the box and had transported it between the storage facility and his home.

There were also a number of facts that tended to show that Martin was trying to figure out whether he was being watched. Martin parked across the street and walked to the facility rather than parking nearby. He was seen looking around the front of the storage facility before proceeding to the back entrance. Martin was also seen looking around his backyard before placing a bag with a box in it into his trunk, and he was seen "staring at" law enforcement agents as he drove to the storage facility for the second time. The fact that Martin made a phone call immediately after he went to the storage facility the first time tends to indicate that he was informing someone that the box had arrived.

It is true, as Martin states, that each of these activities could be totally innocent. However, it is immaterial that certain acts, if viewed separately, might be consistent with innocence, if the totality of the circumstances shows the existence of probable cause. United States v. Hoyos, 868 F.2d 1131, 1136 (9th Cir. 1989). These arguably suspicious activities, coupled with Martin's transportation of a parcel similar to the box of cocaine soon after the cocaine was delivered, gave the magistrate a basis for concluding that Martin was probably involved in drug trafficking.

Martin argues that in this case, even if there was probable cause to believe he was engaged in drug trafficking, there was no probable cause to believe that there was evidence in the house and car because the UPS box had been seen in the storage locker prior to issuance of the warrant. However, the warrant did not only authorize the search for the box, but also for other drug paraphernalia, or address books evidencing drug transactions. Even if the facts in the warrant did not justify a search for the UPS box in the house or car, there was still probable cause to believe that other evidence would be found at his house and car. There was direct evidence linking the house and car with contraband: Martin had been seen placing what was believed to be a box of cocaine in his car, and taking it to his home. Even if the specific box had been returned to the storage facility, the act of transportation gives rise to an inference that other evidence would be located in the house and car.

A. The effect of the inclusion of "tainted" evidence concerning the location of the box

At the suppression hearing, the district court found that the officers saw the box legally and, therefore, the sighting did not taint the warrant. However, even assuming that the box was viewed illegally, the ordinary remedy when a warrant affidavit includes illegally obtained information is for the reviewing court to excise the information and determine whether the affidavit still states probable cause. United States v. Driver, 776 F.2d 807, 812 (9th Cir. 1985). United States v. Vasey, 834 F.2d 782, 788 (9th Cir. 1987). If we excise the allegedly illegal information about the viewing of the box, the affidavit still states probable cause to search for evidence in Martin's house and car. Thus, we need not determine whether the box was viewed legally.

II. The Warrant to Search the Storage Facility

Since we find the searches of the house and car to be lawful, Martin's argument that the search of the facility was tainted by these prior searches fails. Nor does the prior sighting of the box affect the validity of the warrant to search the storage spaces. Even if that information were excised from the affidavit, the affidavit would still state probable cause to search the storage spaces. The storage spaces were rented to Hawaii Outfitters. A box of cocaine, addressed to Hawaii Outfitters, had been delivered to the facility. Martin, who was believed to be associated with the Hawaii Outfitters, had apparently taken control of the box. He was later seen at the facility, apparently returning the box of cocaine. These facts were sufficient for the magistrate to make a determination of probable cause to search the facility.



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