United States of America, Plaintiff-appellee, v. Gaylen Howard Haberman, Defendant-appellant.united States of America, Plaintiff-appellee, v. Norrene Ann Haberman, Defendant-appellant, 949 F.2d 399 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 949 F.2d 399 (9th Cir. 1991)

Submitted Nov. 5, 1991. Decided Dec. 5, 1991


Before TANG, O'SCANNLAIN and RYMER, Circuit Judges.


MEMORANDUM** 

Gaylen and Norrene Haberman conditionally pled guilty to possession with the intent to distribute 100 grams or more of methamphetamine, reserving their right to appeal the denial of their motions to suppress and their sentences. We affirm.

* As the Habermans told police after being informed of their rights, they were engaged in a scheme to import methamphetamine from Korea. Their Korean source was the former wife of Norrene Haberman's brother. She would send them 250 to 300 grams of methamphetamine a month, hidden in Reebok shoe boxes. The Habermans would pay her using postal money orders.

The investigation of the Habermans was begun by Deputy Kim Lowe1  of the Clackamas County Sheriff's Department. Upon learning that the Habermans' criminal activity might involve importing illegal drugs from a foreign country, Deputy Lowe contacted the local U.S. Customs Service office. That office determined to assist Deputy Lowe, and assigned Special Agent E. Neil Van Horn to the investigation. On August 22, 1989, Deputy Lowe applied for a search warrant for the Haberman residence, and two days later a group of officers from the Customs Service and the Sheriff's Department executed the warrant, seizing 137 grams of pure methamphetamine, drug paraphernalia, records, and $3400 in cash.

Prior to their pleas, the Habermans had sought to have the results of the government's search of their home suppressed, or in the alternative sought a Franks hearing on the sufficiency of the affidavits supporting the warrant upon which the search was based. The court denied both the motion to suppress and the motion for a Franks hearing. Following their pleas, Gaylen and Norrene Haberman were each sentenced to the mandatory minimum term for the offense to which they had pled guilty, ten years in prison followed by five years of supervised release.

II

The Habermans assert three bases for their appeals. First, they allege that the district court erred in denying their motions for a Franks hearing. Second, they contend that the district court incorrectly determined that the front door of their home was open when the officers arrived to execute the search, hence eliminating the requirement that the executing officers knock before entering the building, and that the court erred in finding that the officers announced themselves before entering. Third, they claim that the lack of written guidelines regarding when the Customs Service should pursue an investigative lead is a violation of due process. We address these assertions in turn.

* The Habermans contend that the affidavit supporting the search warrant for their home omitted facts material to the determination of whether an informant relied upon in the affidavit was reliable. We review the district court's denial of the Franks hearing de novo. United States v. Whitworth, 856 F.2d 1268, 1280 (9th Cir. 1988), cert. denied, 489 U.S. 1084 (1989). In determining whether a Franks hearing is merited, we assume that all of the omissions alleged by the Habermans are true,2  and consider whether "the affidavit ... supplemented by the omissions would not be sufficient to support a finding of probable cause." Id. at 1280-81 (internal quotation omitted). Probable cause exists where the magistrate judge could "conclude that it would be reasonable to seek the evidence in the place indicated in the affidavit." United States v. Peacock, 761 F.2d 1313, 1315 (9th Cir.), cert. denied, 474 U.S. 847 (1985).

In her affidavit supporting her application for a search warrant for the Habermans' home, Deputy Lowe relied in part on information supplied by John Baughman,3  an associate and neighbor of the Habermans, and it is with Baughman's reliability that the Habermans take issue. For this analysis, we accept as true the Habermans' assertions that Baughman has had a checkered past. At various times in his life, Baughman allegedly used aliases, engaged in criminal activity, and suffered from mental illness. The Habermans also allege that at the time Baughman was providing information to the police in this matter, the police knew he was "mentally unstable and unreliable" and suffered from "psychological instability," and that he took from the Habermans without permission some of the supporting documentary evidence he presented to Deputy Lowe. Finally, the Habermans allege that the affidavit omits certain details of a concededly uncontrolled methamphetamine purchase made by Baughman on August 21, 1989.

The Habermans' allegations, if true and included in the affidavit, would have tended to reduce the confidence a magistrate judge would have had in Baughman's reliability. If the affidavit supporting the warrant here were based virtually entirely on uncorroborated information from Baughman, as the Habermans represent, such allegations could possibly have been material to the magistrate judge's finding of probable cause. Deputy Lowe's nine-and-a-half page, single-spaced affidavit, however, provides ample corroboration of Baughman's information. First, before Deputy Lowe had ever met Baughman, she had been informed by a Gresham, Oregon detective that a purchase of methamphetamine had been observed at the Haberman home. Second, Baughman gave Deputy Lowe four receipts from the purchase of thousands of dollars of postal money orders, all purchased by Norrene Haberman on the same day, confirming Baughman's description of the method of payment the Habermans used to pay their Korean supplier of methamphetamine. Third, Baughman gave Deputy Lowe an express mail receipt indicating that Norrene Haberman had mailed an article to Korea, again confirming the Korean connection. Fourth, Baughman gave Deputy Lowe a piece of paper he had taken from the Haberman residence that appeared to record drug transactions and contained the names of methamphetamine customers known to Deputy Lowe from other investigations. Fifth, Baughman made a controlled purchase of methamphetamine from the Haberman home on August 14, 1989, under the observation of Clackamas County deputies. Sixth, the Habermans' postal carrier told Deputy Lowe that the Habermans regularly received shoebox-sized packages and express mail from overseas, again confirming Baughman's account. Seventh, Deputy Lowe confirmed from Department of Motor Vehicles and FBI records that Norrene Haberman's brother lived in the same trailer park as the Habermans, and was a convicted methamphetamine dealer.

Hence, even assuming that the Habermans' allegations about Baughman's lack of reliability were true, when viewed in the context of all the corroborating evidence set forth in the affidavit, probable cause would still exist. We find that the "omission of material bearing on the informant ['s] credibility was not material because the magistrate was provided sufficient circumstances to have a substantial basis for finding probable cause." United States v. Strifler, 851 F.2d 1197, 1201 (9th Cir. 1988), cert. denied, 489 U.S. 1032 (1989). Under the totality of the circumstances, the magistrate judge had "reasonable cause to believe that the things listed as the objects of the search [were] located in the place to be searched." United States v. Ramos, 923 F.2d 1346, 1351 (9th Cir. 1991). No Franks hearing, then, is required to determine whether Habermans' allegations indeed are true, because probable cause existed in any event.

B

The Habermans allege that the law enforcement officers executing the search warrant at their home on August 22, 1989, violated section 3109 of Title 18 of the United States Code by failing to knock and announce themselves before entering the home. Section 3109 requires an officer executing a search warrant to give "notice of his authority and purpose" before "break [ing] open" any door of a house. The government asserts that the front door of the Habermans' residence was open when the police arrived, eliminating the requirement to knock before entering. See United States v. Valenzuela, 596 F.2d 1361, 1365 (9th Cir.), cert. denied, 444 U.S. 865 (1979) ("entry through an open door is not a 'breaking' within the meaning of [18 U.S.C. § 3109]"). Thus the legality of the challenged conduct turns on whether the door through which the officers entered was already open upon their arrival at the Haberman residence.4 

The district court determined that the door was open, and we review such fact finding for clear error. See Ramos, 923 F.2d at 1355. The evidence before the court consisted of two witnesses on behalf of the Habermans who testified that the door was closed, and the testimony of Special Agent Van Horn that the door was open. The government also offered two photographs taken when the warrant was executed that showed an extension cord running across the threshold of the door in the space created by the door being open.

The district court found the Habermans' two witnesses, one of whom was an admitted customer of the Habermans' methamphetamine business, to be "interested" and hence not credible. The court found Special Agent Van Horn to be credible. We must give special deference to the district court's determinations of credibility. Id. at 1356. The district court based its finding that the door was open on Special Agent Van Horn's testimony and the photographs offered by the government, and despite the existence of contrary testimony of the Habermans' witnesses, we cannot find the district court's finding that the door was open to be clearly erroneous.

C

The Habermans claim a violation of their procedural due process rights because they were "singled out" for prosecution under federal law instead of state law. As Gaylen Haberman concedes, once the Customs Service became involved in his investigation, that was determinative that the case would be referred to the U.S. Attorney instead of the state prosecutor. Thus, to the extent that the Habermans were "singled out" for federal prosecution, such singling out must have occurred at the time the Customs Service determined to join the Clackamas County investigation of them, because from that point on it was certain that their case would be referred to the U.S. Attorney. Apparently, then, it is this discretion vested in the Customs Service to decide whether to investigate suspected schemes to import illegal drugs that the Habermans find unconstitutional. When the Customs Service receives a lead on possible criminal activity, the Habermans assert that due process requires written guidelines to control which leads the Customs Service may follow.5 

As described by Special Agent Van Horn, when someone phones in information regarding criminal activity that is within the jurisdiction of the Customs Service to investigate, Special Agent Van Horn passes along the lead to his supervisor. The supervisor decides whether the lead is worth pursuing, and if so, which agent should conduct the investigation, consistent with keeping an even workload among the agents. Here, Clackamas County Sheriff's Deputy Lowe called Special Agent Van Horn to report her suspicions that the Habermans were involved in a scheme to import methamphetamine from Korea. Special Agent Van Horn told his supervisor about Deputy Lowe's lead, and the supervisor instructed Special Agent Van Horn to begin working with Deputy Lowe on the investigation.

The Habermans do not explain how this process singled them out, or how the due process clause would require the Customs Service to adopt written guidelines. Significantly, the Habermans do not allege that the Customs Service chose to pursue its investigation of their importation scheme based on their race or religion, or on some other irrational basis. Rather, they allege error merely in the fact that written guidelines governing the decision to pursue an investigation do not exist.

The only authority the Habermans cite to support their assertion that due process requires that Customs Service decisions to investigate be controlled by written guidelines does not support such a contention. Indeed, that court stated that "law enforcement officers are afforded discretion in matters of investigation and arrest of criminal suspects." United States v. Williams, 746 F. Supp. 1076, 1081 (D. Utah 1990). We reject the notion that, absent any allegation of selective investigation based on race, religion, sex or other irrational bases, the Constitution is violated merely by the fact that a law enforcement agency does not have written guidelines regarding the inherently subjective determination of which investigative leads are worth pursuing. "The nature of criminal investigations is such that police officers ... must be given freedom in which to exercise their discretion as to which leads to follow...." Kompare v. Stein, 801 F.2d 883, 892 (7th Cir. 1986).

AFFIRMED.

 *

The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a), Ninth Circuit R. 34-4

 **

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 R. 36-3

 1

Deputy Lowe was apparently married at some point during these proceedings, and some of the court documents, including the search warrant and supporting affidavit, refer to her as Deputy Chandler. We refer to her throughout by her present name

 2

We decline, however, to accept assertions of fact in Gaylen Haberman's brief that lack any citation to the record, and in fact are not supported by the record. See Ninth Circuit Rule 28-2.8 ("Every assertion in briefs regarding matters in the record shall be supported by a reference to the page or document number of the original record where the matter relied on is to be found."). In particular, his assertion that the affiant, Deputy Lowe, was aware that the Habermans had quit drug dealing and sworn off all narcotics, yet with this knowledge continued to pursue the search warrant, see Gaylen Haberman's Brief at 5-6, is unsupported by a citation to the record. What the record in fact indicates is that Baughman, although highly skeptical himself, passed along to Deputy Lowe for whatever it was worth Gaylen Haberman's vague, inchoate intentions to get out of the methamphetamine business. See Clerk's Record, Document 35 at 22 (Aug. 21, 1989 investigative report of Deputy Lowe)

 3

Baughman has been a named, identified informant from the beginning, and hence the strict analysis given to warrants based on confidential informants is inapplicable here

 4

Norrene Haberman also contends that the officers failed to announce themselves before entering the Haberman residence. Under Valenzuela, however, section 3109 does not apply if the door is open, seemingly eliminating both the knock and notice requirements set forth therein. Nonetheless, we need not reach the question of whether officers need to announce themselves before passing through an open door because the district court was not clearly erroneous in crediting Special Agent Van Horn's testimony that the officers executing the warrant in fact did announce themselves despite the fact of the open door

 5

Norrene Haberman's contentions that an entity called the Regional Organized Crime Narcotics Task Force conducted this investigation and referred the case for federal prosecution find no support in the record. Indeed, throughout the hearing on this issue, neither of the attorneys for the Habermans ever even alleged that any local agency other than the Clackamas County Sheriff's Department participated in the investigation of the Habermans. New facts cannot be introduced into the record on appeal. Moreover, we cannot accept the notion that a due process violation is established when a local law enforcement agency (or multi-agency task force) alerts the Customs Service to a suspected smuggling scheme