Unpublished Disposition, 928 F.2d 409 (9th Cir. 1989)

MEMORANDUM^* 

FACTUAL BACKGROUND

On November 27, 1987, Deborah R. Slater, an assistant United States Attorney, applied to the United States District Court for the Southern District of California for an order authorizing United States Customs agents to enter an aircraft bearing Federal Aviation Administration (FAA) registration number N4513U and install "an electronic tracking device and/or a non-directional radio beacon [to be used] as a physical surveillance aid for ninety (90) days." The affidavit of Alex R. Ilusorio, a United States Customs Service special agent based in San Diego, California supported the application.

Agent Ilusorio's affidavit established probable cause to believe Aircraft N4513U was being used to smuggle narcotics. The affidavit indicated that on May 13, 1986, Raul D. Rodriguez bought the aircraft for $15,000 in cash, but the transaction was not registered with the FAA. The affidavit identified Raul Rodriguez as a known member of a Tucson drug-trafficking ring.

The affidavit indicated that on October 15, 1987, Rodriguez sold the aircraft to a Michael M. Schneider. Rodriguez and Schneider both listed privately owned drop boxes as their addresses; when agents checked the Ohio State driver's license number which Schneider used to obtain the mailbox, they found no such number existed. The affidavit stated that Schneider's true identity was believed to be Steven Louis Canis, but it erroneously stated that Canis was a convicted marijuana smuggler; Canis had been arrested twice for narcotic offenses, but not convicted.

The affidavit also stated that agents had visually inspected the aircraft and found that the bottom part of the plane was covered with a fine sandy film and that the landing gear and propellers had scratches and dents on them. The affidavit also stated that on November 25, 1987, a concerned citizen at Gillespie Field in El Cajon, California reported that Lon Brodsky brought the plane in for repairs; the citizen was suspicious because the aircraft was heavily used and very dirty and grimy, some extra plumbing had been done on the fuselage indicating an extra fuel tank had been installed, and the passenger seat had been repeatedly removed and reinstalled. The affidavit further indicated that Brodsky always paid for gas and services in cash, was suspected of having piloted a different aircraft which had been used in drug smuggling, and had been contacting other individuals who were being investigated for smuggling narcotics.

Finally, the affidavit stated that on November 25, 1987, Customs Service dog "Hutch" reacted positively to the presence of narcotics near the aircraft's door. Hutch was said to be "a trained, experienced narcotics dog, who [had] positively identified the presence of narcotics which resulted in the seizures of contraband and the arrest of violators."

On November 27, 1987, a United States Magistrate reviewed the affidavit and found probable cause to believe the aircraft was being used to smuggle narcotics in violation of 21 U.S.C. §§ 952 and 846. Accordingly, the court issued an order authorizing the installation of a transponder and a beeper. The magistrate subsequently issued five extension orders.

The first extension came on December 23, 1987, when the magistrate extended the initial order for thirty days; the affidavit which supported this order described numerous further facts which formed the basis for probable cause. For example, the affidavit stated that Brodsky's wallet was full of cash and that he had bought numerous supplies for the plane, always paying with cash; it described the movements of the plane around Arizona, California, Nevada and the Mexican border; it described the suspicious movements and actions of the suspects; and it described how two narcotics dogs, each at a different airport, had reacted positively to the scent of narcotics near the door of the plane.

The magistrate issued the second extension order on January 12, 1988; the affidavit which supported this order stated that although a transponder had been installed, a beacon had not been installed because there was not one available in November and December. The affidavit incorporated the information in the first two affidavits and requested thirty extra days to install the beacon and perform any necessary maintenance on the devices.

The magistrate issued the third extension order on February 11, 1988; although the third affidavit set forth numerous facts which could form the basis of probable cause, one fact stands out: agent Ilusorio's discovery of 0.4 grams of marijuana on the floor of the plane while he was installing the radio beacon.

The magistrate issued the fourth extension order on March 11, 1988. The affidavit supporting this order stated that a thirty-day extension was warranted because agents had observed the plane flying in a suspicious pattern near the Mexican border. The affidavit also explained that Steve Canis, Neal Canis's brother, had been apprehended at the Tucson airport carrying a briefcase which contained $38,000, a small amount of marijuana, and a list of telephone numbers, including those of Steve and Neal Canis.

The magistrate issued the fifth extension order on April 8, 1988. The fifth affidavit admitted the aircraft had not flown for a few days, but suggested that with all the information before the magistrate, a sixty-day extension was warranted because a plane being used to smuggle drugs can be inactive for long periods.

On May 2, 1988, approximately three weeks after the magistrate issued the last extension order, emissions from the transponder informed Customs agents that aircraft N4513U was in Phoenix, Arizona. The agents launched an aerostat radar device to monitor the plane. On May 3, 1988, the aerostat monitored the plane flying to Mexico; a few hours later the aerostat monitored the plane flying back to the United States. Customs agents in Tucson dispatched an aircraft to locate and follow the plane, which was flying at a low altitude.

Aircraft N4513U was lost from radar for five to seven minutes while it passed through the aerostat's cone of silence. Knowing the plane would pass through the cone of silence, agents who were monitoring the plane on the ground went outside and visually observed the plane during this time period. When the aircraft reappeared on the radar screen, it was constantly observed by agents in an observation plane.

Aircraft N4513U landed on a remote road seven miles east of Redington, Arizona. Customs agents in the air observed a blue and white pickup pull up to the plane and observed individuals moving between the rear of the aircraft and the pickup. After the plane had departed, agents on the ground and in a helicopter gave chase to the pickup and apprehended appellant Floyd and codefendant Prettyman as they attempted to flee into the desert on foot. A search of the truck revealed it was full of marijuana.

Aircraft N4513U was followed to the Flagstaff, Arizona airport. When the plane landed agents were waiting; they arrested the occupants, including Neal Canis, and searched the plane.

PROCEDURAL BACKGROUND

On June 1, 1988, a Federal Grand Jury indicted appellants Floyd and Canis. Count 1 of the indictment charged Floyd and Canis with conspiracy to distribute more than 100 but less than 1,000 kilograms of marijuana in violation of 21 U.S.C. §§ 841(a) (1), 841(b) (1) (B) (vii), and 846; count two charged them with possession with intent to distribute 1,260 pounds of marijuana in violation of 21 U.S.C. §§ 841(a) (1) and 841(b) (1) (B) (vii); and count three charged them with importation of more than 100 but less than 1,000 kilograms of marijuana in violation of 21 U.S.C. §§ 952(a), 960(a) (1), and 960(b) (2) (G). Count four charged Canis with violating 19 U.S.C. § 1590(a) (d) (2); count five charged Floyd with assaulting a federal officer.

On September 19, 1988, both appellants entered conditional guilty pleas to counts one, two, and three, the counts relevant to this appeal. Appellants also brought motions to suppress the evidence; the court held an evidentiary hearing and denied the motions on November 15, 1988. On December 5, 1989, the court sentenced appellant Floyd to five years' imprisonment with counts one, two, and three to run concurrently, and with a four-year term of supervised release. The court sentenced appellant Canis to seven years' imprisonment with counts one, two, and three to run concurrently, and a four-year term of supervised release. Both appellants filed timely appeals; this court has jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

DISCUSSION

Appellants assert five arguments on appeal: (1) agent Ilusorio's affidavits contained false information which made the court orders invalid; (2) the canine sniffs were illegal searches; (3) the seizure of the 0.4 grams of marijuana was illegal; (4) the duration of the court orders was unreasonable; and (5) the search of the aircraft at the Flagstaff, Arizona airport was illegal.

Appellants first argue that a false statement and two omissions rendered Agent Ilusorio's affidavits invalid under Franks v. Delaware, 438 U.S. 154 (1978). "Whether false statements or omissions are intentional or reckless is a factual finding reviewed under the clearly erroneous standard. Whether misstatements and omissions are material to a finding of probable cause is subject to de novo review." United States v. Dozier, 844 F.2d 701, 705 (9th Cir.), cert. denied, 488 U.S. 927 (1988) (citations omitted).

The false statement appears to be the result of negligence on the part of agent Ilusorio, but the district court did not err in holding that the statement was immaterial to a finding of probable cause. In his initial affidavit agent Ilusorio stated that Steve Canis was "a convicted marijuana smuggler." At the evidentiary hearing below, agent Ilusorio who works in San Diego, California, testified that he received much of the background information over the telephone from agent Eshelman who works in Tucson, Arizona. Eshelman told Ilusorio in a telephone conversation that Canis "had two narcotic priors." Ilusorio said he believed this statement meant Canis had two prior narcotics convictions, but he did not check the record. In Franks the Supreme Court explained that mere negligence "in checking or recording the facts relevant to a probable-cause determination" does not affect the validity of an affidavit. Franks, 438 U.S. at 170; see United States v. Burnes, 816 F.2d 1354, 1358 (9th Cir. 1987).

Appellants also allege the affidavit was invalid because it failed to reveal the plane had been used previously to smuggle narcotics. This information was relevant, appellants contend, because Hutch may have reacted to the marijuana "contained in the aircraft when previously owned by others."

The validity of a warrant can be challenged for "deliberate or intentional omissions of facts that tend to mislead." United States v. Stanert, 762 F.2d 775, 781 (9th Cir.), amended, 769 F.2d 1410 (9th Cir. 1985) (citation omitted). Here the omissions were not intentionally or deliberately misleading. Realizing the aircraft had been seized in 1985 due to its use in drug-trafficking, both Eshelman and Ilusorio checked with dog trainers to see if a narcotics dog might react positively in 1987 to narcotics contained in a plane in 1985: one trainer informed Eshelman that the scent would not linger in a plane for two years; another trainer informed Ilusorio that the scent would fade after only two or three months. There was, therefore, no reason for the agents to believe the omission of this information would mislead the magistrate.

Finally, appellants contend that Ilusorio failed to reveal to the magistrate that he was aware "the aircraft had been seen landing on dirt airstrips in the United States while not containing contraband." We reject this argument because it is not supported by the record and was not raised below.

Appellants next argue that the canine sniffs of the plane were invalid under the Fourth Amendment. This court generally reviews de novo questions respecting motions to suppress. United States v. Low, 887 F.2d 232, 234 (9th Cir. 1989).

Both the Supreme Court and this court have held that a canine sniff of luggage at an airport is sui generis and does not constitute "a 'search' within the meaning of the Fourth Amendment." United States v. Place, 462 U.S. 696, 707 (1983); United States v. Jacobsen, 466 U.S. 109 (1984); United States v. Beale, 736 F.2d 1289, 1289 (9th Cir.) (en banc), cert. denied, 469 U.S. 1072 (1984). These sniffs are not considered searches because the government's interest in curtailing drug-trafficking, especially at airports, is strong (Place, 462 U.S. at 704-705), while the nature of a canine sniff is uniquely unintrusive:

A 'canine sniff' by a well-trained narcotics detection dog ... does not require opening the luggage. It does not expose noncontraband items that otherwise would remain hidden from public view, as does, for example, an officer's rummaging through the contents of the luggage. Thus, the manner in which information is obtained through this investigative technique is much less intrusive than a typical search. Moreover, the sniff discloses only the presence or absence of narcotics, a contraband item. Thus, despite the fact that the sniff tells the authorities something about the contents of the luggage, the information obtained is limited. This limited disclosure also ensures that the owner of the property is not subjected to the embarrassment and inconvenience entailed in less discriminate and more intrusive investigative methods.

Place, 462 U.S. at 707.

This reasoning is equally applicable to a canine sniff of the outside of plane which is parked at a public airport and which is suspected of being used in drug-trafficking: The limited nature of the sniff in no way subjects the owner of the plane "to the embarrassment and inconvenience entailed in less discriminate and more intrusive investigative methods" (Beale, 736 F.2d at 1291); and the government has as strong an interest in detecting narcotics in airplanes as it does in luggage.

Appellants also argue that the sniffs were illegal because they took place out of the owner's presence, without the owner's knowledge, and without any exigencies. These conditions are not prerequisites to a valid canine sniff. See United States v. DiCesare, 765 F.2d 890, 897 (9th Cir.), amended, 777 F.2d 543 (9th Cir. 1985) (the canine sniff of a parked car's trunk is "not a 'search' requiring probable cause").

Appellants fail to explain their assertion that the sniffs which occurred at the parking area of a public airport actually occurred on private property. Nonetheless, the question is not whether the parking area was "somehow 'private space' in the abstract, but instead whether [appellants'] reasonable expectations were invaded by the search." United States v. Colyer, 878 F.2d 469, 475 (D.C. Cir. 1989) (holding a canine sniff of the exterior of a private sleeping compartment in a train is not a search). Appellants' reasonable expectations of privacy were not invaded by the canine sniffs of the plane: "No legitimate expectation of privacy is impinged by governmental conduct that can 'reveal nothing about noncontraband items.' " Id. (quoting Jacobsen, 466 U.S. at 124 n. 24).

Appellants' contention as to the dogs' reliability also fails. Hutch was identified as a "trained, experienced narcotics dog who ha [d] positively identified the presence of narcotics which resulted in seizures of contraband and the arrest of violators." Moreover, Hutch reacted positively to the aircraft at two different airfields; and Falco, a trained narcotics dog with the Maricopa County Sheriff's department, also reacted positively near the door of the plane at a third airport. These facts established the requisite reliability. See United States v. Spetz, 721 F.2d 1457, 1464 (9th Cir. 1983) (a dog's reliability was established particularly because the dog's reaction was "independently corroborated by the alert of another dog").

Appellants next argue that agent Ilusorio's seizure of the 0.4 grams of marijuana was illegal under Coolidge v. New Hampshire, 403 U.S. 443 (1971), because the marijuana was not discovered inadvertently. Appellants also contend that Ilusorio's movements within the aircraft exceeded the scope of the court order.

The government correctly points out that Coolidge has been superseded by Horton v. California, 110 S. Ct. 2301 (1990). In Horton the Supreme Court held that the discovery of evidence does not have to be inadvertent to fall within the plain view doctrine. Id. at 2308. After Horton there are only two requirements which must be met in order to justify a warrantless seizure under the plain view doctrine: (1) "not only must the item be in plain view, its incriminating character must also be 'immediately apparent' "; and (2) "not only must the officer be lawfully located in a place from which the object can be plainly seen, but he or she must also have a lawful right of access to the object itself." Id (citations and footnote omitted). In the case at bar, both requirements are satisfied: first, the marijuana was lying on the floor of the cabin in plain view, and the incriminating nature of the marijuana was readily apparent to an experienced Customs agent; and second, the court order gave agent Ilusorio a lawful right to be in the cabin and to have access to the marijuana.

Agent Ilusorio also did not exceed the scope of the order: the order authorized the agents to enter the plane and install a beacon, but it did not restrict their movements inside the cabin. Also, the power source (the battery) was located no more than five feet away from area where the marijuana was located.

Appellants next argue that because the duration of the court orders was unreasonable any information which might have formed the basis for probable cause in the initial orders became stale by the time the later orders were issued. In our review of this argument we must accord great deference to the magistrate's determination that the affidavits established probable cause to install a tracing device. United States v. McQuisten, 795 F.2d 858, 861 (9th Cir. 1986). We will not "reverse a magistrate's finding of probable cause unless it is clearly erroneous. We need only find that under the totality of the circumstances the magistrate had a substantial basis for concluding that probable cause existed. In doubtful cases, preference should be given to the validity of the warrant." Id (citations omitted).

Under this deferential standard we find no error in the district court's issuance of the orders. As discussed previously, see supra p. 2-5, each affidavit individually, and especially all of the affidavits together, provided more than a substantial basis for a finding of probable cause.

V. The Search of the Plane at the Flagstaff Airport

We need not decide whether the search of the aircraft at the Flagstaff airport was a valid border search, because we hold that the search was justified on other grounds: the information in the affidavits, combined with the information obtained while agents monitored the plane on May 3, 1989, gave the agents probable cause to believe the plane contained evidence of a crime. United States v. Carroll, 267 U.S. 132 (1925).

AFFIRMED