Unpublished Disposition, 907 F.2d 155 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 907 F.2d 155 (9th Cir. 1989)

No. 89-10443.

United States Court of Appeals, Ninth Circuit.

Before SCHROEDER and CANBY, Circuit Judges, and EARL B. GILIAM,*  District Judge.

MEMORANDUM** 

John Francis Catteyson challenges the district court's denial of his motion to suppress evidence and refusal to hold a hearing pursuant to Franks v. Delaware, 438 U.S. 134 (1978). Catteyson contends that the underlying affidavit did not provide probable cause for the search and that it contained false statements and omissions. Under the totality of the circumstances, the affidavit provided sufficient probable cause to support the search warrant. Therefore we affirm.

On January 20, 1989, Catteyson and two codefendants were indicted on three counts: (1) conspiracy to manufacture and distribute methamphetamine, in violation of 21 U.S.C. sections 841(a) (1) and 846; (2) manufacture of methamphetamine, in violation of 21 U.S.C. section 841(a) (1); (3) possession with intent to distribute methamphetamine, in violation of 21 U.S.C. section 841(a) (1). Catteyson was also charged with the use of a firearm, in violation of 18 U.S.C. section 924(c) (1).

On March 15, 1989, Catteyson filed a motion to suppress evidence, contending that the search warrant was not supported by probable cause and that he was entitled to a Franks hearing. On April 21, 1989, the district court denied the motion to suppress. On May 10, 1989, Catteyson waived indictment and the government filed a one-count information charging Catteyson with maintaining a place for the manufacture of methamphetamine, in violation of 21 U.S.C. section 856. Catteyson pleaded guilty to this charge, while reserving his right under Fed. R. Crim. P. 11(a) (2) to appeal the denial of his motion to suppress. The court approved his right to appeal and the government consented.

On November 8, 1988, United States Magistrate Esther Mix issued a search warrant for 3444 Subaco Road, Robbins, California. The warrant listed the paraphenalia used in manufacturing methamphetamine as the object of the search. Police officers executed the search that day and seized various chemicals, laboratory equipment, and other items from a mobile home and office at that address.

The sworn affidavit of Martin J. Horan, Special Agent of the California Bureau of Narcotic Enforcement, supported the warrant. A report from Michael R. Nason, a Sutter County Deputy Sheriff, is attached to the affidavit and is mentioned within it. Attachment A describes the property at 3444 Subaco Road and its location. Attachment B lists the equipment and chemicals used in the manufacture of methamphetamine. The first one and one-half pages of the affidavit attest to Horan's twenty-two years experience in drug-related law enforcement.

Horan relates that, on October 3, 1988, Agent Jim Denney of the California Narcotics Enforcement Team received a telephone call from an anonymous male citizen stating that Catteyson was working at the methane gas plane in Robbins, California, that he was operating a methamphetamine laboratory inside the plant, and that he drove a blue 1985 Chevrolet Camaro and a 1971 Ford Mustang, Montana license 3-146851.

Horan relates that the California Narcotics Enforcement Team conducted the following investigation to confirm the information supplied by the caller. Agent Denney contacted Deputy Ray Paige of the Sutter County Sheriff's office, who confirmed the existence of the gas plant on Subaco Road, established that Catteyson was employed there, found a 1971 Mustang with Montana license 3-156851 parked at the gas plant, and determined that the Mustang was registered to Catteyson.

Horan relates that he reviewed the business records of Grau-Hall Scientific, 6501 Elvas Avenue, Sacramento, California. These records reflected that, on October 5, 1988, two men driving a dark blue Camaro, California license 1JH079, paid $1,691.76 in cash for laboratory equipment. They purchased "a thermometer adapter, a thermometer, a 22 liter triple neck flask, a 6 liter separatory funnel, a 500 mm Allihn condenser, a 22 liter heating mantle, a flat bottom flask, two mantle controls, and a 4 liter filler flask." Excerpt of Record at 11. Horan relates that he traced the registration of the blue Camaro to Catteyson.

Horan relates that, on October 18, 1988, Agent Kauk of the California Narcotics Enforcement Team received a second anonymous call. The caller told Agent Kauk that Catteyson and persons known only as John, Joe, Skip and Chuck were operating a methamphetamine laboratory in a gas plant on Subaco road, that the telephone number at the gas plant was (916)738-4402, and that he had purchased one quarter of a pound of "crank" for $3,000 from Skip and Chuck on October 14, 1988. Horan related that Agent Kauk confirmed that (916)738-4402 is listed to 3444 Subaco Road, Robbins, California.

Horan relates that he located and viewed California driver's license K0809542 for John Francis Catteyson, Jr., P.O. Box 244, Robbins, California. The license also indicated a Subaco Road address. Horan relates that he drove to the Subaco Road gas plant and observed the dark blue Mustang, Montana license 3-146851, parked inside the fenced area.

Horan relates that Deputy Nason of the Sutter County Sheriff's Office had two years of narcotics experience and has worked on ten methamphetamine laboratories. While on patrol, Deputy Nason noticed a strong chemical odor coming from the Subaco Road gas plant. Horan relates that, on November 3 and 7, 1988, Deputy Nason was in front of the Subaco Road gas plant and both times he noticed an odor consistent with the odor he has smelled at methamphetamine laboratories in the past.

Horan relates that, on November 6, 1988, Deputy Paige went to the gas plant and spoke to a man who identified himself as Catteyson. At that time, Catteyson stated that he lived there and that the gas plant was currently shut down. Catteyson then went into the trailer to get some information and when Deputy Paige tried to follow, Catteyson slammed the door in his face. Deputy Paige noticed a heavy chemical odor coming from the trailer that burned his eyes and gave him a headache. Horan relates that, in his experience, the chemicals used in manufacturing methamphetamine will cause this reaction. Based on the foregoing information, Magistrate Mix issued the search warrant.

A magistrate's determination of probable cause sufficient to issue a search warrant will not be overturned unless clearly erroneous. United States v. McQuisten, 795 F.2d 858, 861 (9th Cir. 1986). The district court's findings of fact underlying the decision not to suppress are accepted unless clearly erroneous. United States v. Dozier, 844 F.2d 701 (9th Cir. 1988), cert. denied, 109 S. Ct. 312 (1988). Here, the district court found probable cause considering the totality of the information, pursuant to Illinois v. Gates, 462 U.S. 213 (1983).

The supporting affidavit, when viewed under the totality of the circumstances, must furnish the magistrate with a substantial basis for making a common-sense decision that a fair probability existed that contraband or evidence of a crime would be found at the specified location. United States v. Espinoza, 827 F.2d 604 (9th Cir. 1987). The conclusions of a trained, experienced police officer are to be given great respect. See Id. at 610 (9th Cir. 1987). A trained officer's observation that an odor is consistent with the odor that emanates from the manufacture of a drug supports a finding of probable cause, although alone it is not enough. See United States v. Landis, 726 F.2d 540 (9th Cir. 1984), cert. denied, 467 U.S. 1230 (1984). An informant's veracity may be established by independent police corroboration of the details provided by the informant. United States v. Angulo-Lopez, 791 F.2d 1394, 1397 (9th Cir. 1986). The corroboration of seemingly innocent details may provide probable cause because the inquiry "is not whether particular conduct is 'innocent' or 'guilty,' but the degree of suspicion that attaches to particular types of noncriminal acts." Illinois v. Gates, 462 U.S. 238, 244 n. 13 (1983).

Here, the district court found that the facts related in the affidavit and the reasonable inferences that can be drawn from them supported a finding of probable cause. The court first noted that the anonymous tips alone would not be enough because the agents could corroborate only innocent details. Excerpt of Record at 39, 41. The court then stated that smelling the odors alone would not be enough. Id. at 39. In the end, the court relied on the purchase of equipment from Grau-Hall Scientific. Id. Although the affidavit did not state that this equipment was used to manufacture methamphetamine, the purchase read in conjunction with the declared object of the search, attached to the affidavit as Exhibit B, permits a common-sense conclusion that this equipment was purchased to manufacture methamphetamine. Id. at 39-40. The court noted the cash purchase and that Catteyson's car was driven to Grau-Hall. Id. at 40. This court concurs in the district court's analysis of the motion to suppress.

The district court's decision whether to hold a Franks hearing is reviewed de novo. United States v. Dozier, 844 F.2d 701, 706 (9th Cir. 1988). A defendant must satisfy five requirements before he is entitled to a Franks hearing:

(1) the defendant must allege specifically which portions of the warrant affidavit are claimed to be false; (2) the defendant must contend that the false statements or omissions were deliberately or recklessly made; (3) a detailed offer of proof, including affidavits, must accompany the allegations; (4) the veracity of only the affiant must be challenged; (5) the challenged statements must be necessary to find probable cause.

United States v. Perdomo, 800 F.2d 916, 920 (9th Cir. 1986) (quoting United States v. Dicesare, 765 F.2d 890, 894-95 (9th Cir. 1985)).

Here, Catteyson contends that he did not slam the door in Deputy Paige's face, that Deputy Paige did not attempt to enter the trailer, and that Deputy Paige's eyes were not watering. Catteyson points out that he explained to Deputy Paige that the odor was from the ketone solvents he was using to clean an open line in the back of the trailer. He also told Deputy Paige that the plant was not currently operating, but that he had to keep it clean and in operating condition. The affidavit does not indicate that Deputy Paige was unable to identify the odor. Catteyson contends that leaving out this exculpatory information misled the magistrate.

Even if Horan had included the information listed above, the information would not be sufficient to negate probable cause. See United States v. Roberts, 747 F.2d 537, 546 (9th Cir. 1984). A defendant cannot attack the sufficiency of the warrant when, setting aside the disputed evidence, there remains evidence sufficient to support a finding of probable cause. Franks, 438 U.S. at 171-72.

Here, whether a door was slammed or closed firmly is not material within the totality of the warrant. Neither does the exculpatory evidence that Catteyson argues should have been included make a difference considering the totality of the circumstances. Even if the affidavit had included Catteyson's purported justification for the strong odor, the statement is self-serving and the magistrate could have concluded as such. Deputy Paige's inability to compare the odor at 3444 Subaco Road to the odor typically associated with methamphetamine laboratories does not negate the comparison made by Deputy Nason on two separate occasions. Finally, the purchase at Grau-Hall Scientific of equipment used in the manufacture of methamphetamine by two men driving Catteyson's Camaro strongly supports a finding of probable cause. This court agrees with the district court in its decision that the defendant is not entitled to a Franks hearing.

For these reasons, the conviction is AFFIRMED.

 *

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

 **

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